Urgent: Constitutional Arguments Against NJ ACR157

[Guest guest]

Constitutional Arguments Against NJ ACR157

Alan , J.D., February 16, 2011

www.vaccinerights.com

ACR157[1] would require applicants for a religious exemption to immunizations

to provide a " written statement . . . explaining how the administration of the

vaccine conflicts with the bona fide religious tenets or practices... "

Currently, applicants need only provide a signed, written statement stating that

the proposed law interferes with the free exercise of the pupil's religious

rights.

The bill seems clearly aimed at reducing the number of religious exemptions by

preventing disingenuous religious exemption claims, as NJ does not have a

philosophical exemption. However, having worked with exemption and waiver issues

for a period of years with clients around the country, I can say from experience

that this new provision would result in the rejection of some legitimate

religious exemption claims as well, since most applicants will not seek

counseling on the proper way to present those claims, and inevitably, some will

unwittingly present claims in a manner that allows them to be rejected based on

legal precedent of which the applicants are unaware—i.e., on legal

technicalities.

In the meantime, here are some possible Constitutional issues to raise. If

there is sufficient doubt about the Constitutionality of a bill, it should die a

quick death, regardless of how many constituents are in favor of it.

1. The bill's current phrase, " religious tenets or practices " is

unconstitutional, as it does not allow for personal religious beliefs. Federal

courts have held that limiting the exemption to a " recognized religious

organization . . . violates both the establishment and free exercise clauses of

the First Amendment to the United States Constitution, " Sherr and Levy vs.

Northport East-Northport Union Free School District, 672 F. Supp. 81, 99

(E.D.N.Y., 1987), and that " it is sufficient if the belief `occupies a place in

the life of its possessor parallel to that filled by the orthodox belief in

God.' " Mason v. General Brown Cent. School Dist., 851 F.2d 47 (2nd Cir. 1988)

(quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854). Many

people with legally legitimate religious beliefs opposed to immunizations may

not have a tenet or practice that is violated—only a belief—so, as currently

worded, the bill is unconstitutional.

2. This provision risks excessive entanglement of government and religion in

violation of the First Amendment. Under the Lemon test,[2] government action

must have a secular purpose, must not have the primary effect of either

advancing or inhibiting religion, and must not result in an " excessive

government entanglement " with religion. Giving local authorities responsibility

for assessing the appropriateness of religious beliefs risks frequent and

unchecked violation of one or more of these prongs. Concern about excessive

entanglement is probably why many states' religious exemption laws don't allow

the state to scrutinize the applicants' beliefs.

3. Giving local authorities responsibility for assessing the appropriateness of

religious exemption claims invites broad inconsistency with regard to the

standard(s) and application of those standard(s), unless the state intends to

hire attorneys or other appropriately trained specialists throughout the state

to scrutinize all religious exemption claims based on carefully established

standards. This could lead to equal protection violations under the 14th

Amendment.

Unfortunately, the Constitution does not prevent the state from scrutinizing

religious exemptions, but clearly this is a delicate matter given the potential

excessive entanglement issue.

_______________________

[1] http://www.njleg.state.nj.us/2010/Bills/ACR/157_I1.PDF

[2] Lemon v. Kurtzman, 403 U.S. 602 (1971)

[Guest guest]

Constitutional Arguments Against NJ ACR157

Alan , J.D., February 16, 2011

www.vaccinerights.com

ACR157[1] would require applicants for a religious exemption to immunizations

to provide a " written statement . . . explaining how the administration of the

vaccine conflicts with the bona fide religious tenets or practices... "

Currently, applicants need only provide a signed, written statement stating that

the proposed law interferes with the free exercise of the pupil's religious

rights.

The bill seems clearly aimed at reducing the number of religious exemptions by

preventing disingenuous religious exemption claims, as NJ does not have a

philosophical exemption. However, having worked with exemption and waiver issues

for a period of years with clients around the country, I can say from experience

that this new provision would result in the rejection of some legitimate

religious exemption claims as well, since most applicants will not seek

counseling on the proper way to present those claims, and inevitably, some will

unwittingly present claims in a manner that allows them to be rejected based on

legal precedent of which the applicants are unaware—i.e., on legal

technicalities.

In the meantime, here are some possible Constitutional issues to raise. If

there is sufficient doubt about the Constitutionality of a bill, it should die a

quick death, regardless of how many constituents are in favor of it.

1. The bill's current phrase, " religious tenets or practices " is

unconstitutional, as it does not allow for personal religious beliefs. Federal

courts have held that limiting the exemption to a " recognized religious

organization . . . violates both the establishment and free exercise clauses of

the First Amendment to the United States Constitution, " Sherr and Levy vs.

Northport East-Northport Union Free School District, 672 F. Supp. 81, 99

(E.D.N.Y., 1987), and that " it is sufficient if the belief `occupies a place in

the life of its possessor parallel to that filled by the orthodox belief in

God.' " Mason v. General Brown Cent. School Dist., 851 F.2d 47 (2nd Cir. 1988)

(quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854). Many

people with legally legitimate religious beliefs opposed to immunizations may

not have a tenet or practice that is violated—only a belief—so, as currently

worded, the bill is unconstitutional.

2. This provision risks excessive entanglement of government and religion in

violation of the First Amendment. Under the Lemon test,[2] government action

must have a secular purpose, must not have the primary effect of either

advancing or inhibiting religion, and must not result in an " excessive

government entanglement " with religion. Giving local authorities responsibility

for assessing the appropriateness of religious beliefs risks frequent and

unchecked violation of one or more of these prongs. Concern about excessive

entanglement is probably why many states' religious exemption laws don't allow

the state to scrutinize the applicants' beliefs.

3. Giving local authorities responsibility for assessing the appropriateness of

religious exemption claims invites broad inconsistency with regard to the

standard(s) and application of those standard(s), unless the state intends to

hire attorneys or other appropriately trained specialists throughout the state

to scrutinize all religious exemption claims based on carefully established

standards. This could lead to equal protection violations under the 14th

Amendment.

Unfortunately, the Constitution does not prevent the state from scrutinizing

religious exemptions, but clearly this is a delicate matter given the potential

excessive entanglement issue.

_______________________

[1] http://www.njleg.state.nj.us/2010/Bills/ACR/157_I1.PDF

[2] Lemon v. Kurtzman, 403 U.S. 602 (1971)

[Guest guest]

Constitutional Arguments Against NJ ACR157

Alan , J.D., February 16, 2011

www.vaccinerights.com

ACR157[1] would require applicants for a religious exemption to immunizations

to provide a " written statement . . . explaining how the administration of the

vaccine conflicts with the bona fide religious tenets or practices... "

Currently, applicants need only provide a signed, written statement stating that

the proposed law interferes with the free exercise of the pupil's religious

rights.

The bill seems clearly aimed at reducing the number of religious exemptions by

preventing disingenuous religious exemption claims, as NJ does not have a

philosophical exemption. However, having worked with exemption and waiver issues

for a period of years with clients around the country, I can say from experience

that this new provision would result in the rejection of some legitimate

religious exemption claims as well, since most applicants will not seek

counseling on the proper way to present those claims, and inevitably, some will

unwittingly present claims in a manner that allows them to be rejected based on

legal precedent of which the applicants are unaware—i.e., on legal

technicalities.

In the meantime, here are some possible Constitutional issues to raise. If

there is sufficient doubt about the Constitutionality of a bill, it should die a

quick death, regardless of how many constituents are in favor of it.

1. The bill's current phrase, " religious tenets or practices " is

unconstitutional, as it does not allow for personal religious beliefs. Federal

courts have held that limiting the exemption to a " recognized religious

organization . . . violates both the establishment and free exercise clauses of

the First Amendment to the United States Constitution, " Sherr and Levy vs.

Northport East-Northport Union Free School District, 672 F. Supp. 81, 99

(E.D.N.Y., 1987), and that " it is sufficient if the belief `occupies a place in

the life of its possessor parallel to that filled by the orthodox belief in

God.' " Mason v. General Brown Cent. School Dist., 851 F.2d 47 (2nd Cir. 1988)

(quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854). Many

people with legally legitimate religious beliefs opposed to immunizations may

not have a tenet or practice that is violated—only a belief—so, as currently

worded, the bill is unconstitutional.

2. This provision risks excessive entanglement of government and religion in

violation of the First Amendment. Under the Lemon test,[2] government action

must have a secular purpose, must not have the primary effect of either

advancing or inhibiting religion, and must not result in an " excessive

government entanglement " with religion. Giving local authorities responsibility

for assessing the appropriateness of religious beliefs risks frequent and

unchecked violation of one or more of these prongs. Concern about excessive

entanglement is probably why many states' religious exemption laws don't allow

the state to scrutinize the applicants' beliefs.

3. Giving local authorities responsibility for assessing the appropriateness of

religious exemption claims invites broad inconsistency with regard to the

standard(s) and application of those standard(s), unless the state intends to

hire attorneys or other appropriately trained specialists throughout the state

to scrutinize all religious exemption claims based on carefully established

standards. This could lead to equal protection violations under the 14th

Amendment.

Unfortunately, the Constitution does not prevent the state from scrutinizing

religious exemptions, but clearly this is a delicate matter given the potential

excessive entanglement issue.

_______________________

[1] http://www.njleg.state.nj.us/2010/Bills/ACR/157_I1.PDF

[2] Lemon v. Kurtzman, 403 U.S. 602 (1971)

[Guest guest]

Constitutional Arguments Against NJ ACR157

Alan , J.D., February 16, 2011

www.vaccinerights.com

ACR157[1] would require applicants for a religious exemption to immunizations

to provide a " written statement . . . explaining how the administration of the

vaccine conflicts with the bona fide religious tenets or practices... "

Currently, applicants need only provide a signed, written statement stating that

the proposed law interferes with the free exercise of the pupil's religious

rights.

The bill seems clearly aimed at reducing the number of religious exemptions by

preventing disingenuous religious exemption claims, as NJ does not have a

philosophical exemption. However, having worked with exemption and waiver issues

for a period of years with clients around the country, I can say from experience

that this new provision would result in the rejection of some legitimate

religious exemption claims as well, since most applicants will not seek

counseling on the proper way to present those claims, and inevitably, some will

unwittingly present claims in a manner that allows them to be rejected based on

legal precedent of which the applicants are unaware—i.e., on legal

technicalities.

In the meantime, here are some possible Constitutional issues to raise. If

there is sufficient doubt about the Constitutionality of a bill, it should die a

quick death, regardless of how many constituents are in favor of it.

1. The bill's current phrase, " religious tenets or practices " is

unconstitutional, as it does not allow for personal religious beliefs. Federal

courts have held that limiting the exemption to a " recognized religious

organization . . . violates both the establishment and free exercise clauses of

the First Amendment to the United States Constitution, " Sherr and Levy vs.

Northport East-Northport Union Free School District, 672 F. Supp. 81, 99

(E.D.N.Y., 1987), and that " it is sufficient if the belief `occupies a place in

the life of its possessor parallel to that filled by the orthodox belief in

God.' " Mason v. General Brown Cent. School Dist., 851 F.2d 47 (2nd Cir. 1988)

(quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854). Many

people with legally legitimate religious beliefs opposed to immunizations may

not have a tenet or practice that is violated—only a belief—so, as currently

worded, the bill is unconstitutional.

2. This provision risks excessive entanglement of government and religion in

violation of the First Amendment. Under the Lemon test,[2] government action

must have a secular purpose, must not have the primary effect of either

advancing or inhibiting religion, and must not result in an " excessive

government entanglement " with religion. Giving local authorities responsibility

for assessing the appropriateness of religious beliefs risks frequent and

unchecked violation of one or more of these prongs. Concern about excessive

entanglement is probably why many states' religious exemption laws don't allow

the state to scrutinize the applicants' beliefs.

3. Giving local authorities responsibility for assessing the appropriateness of

religious exemption claims invites broad inconsistency with regard to the

standard(s) and application of those standard(s), unless the state intends to

hire attorneys or other appropriately trained specialists throughout the state

to scrutinize all religious exemption claims based on carefully established

standards. This could lead to equal protection violations under the 14th

Amendment.

Unfortunately, the Constitution does not prevent the state from scrutinizing

religious exemptions, but clearly this is a delicate matter given the potential

excessive entanglement issue.

_______________________

[1] http://www.njleg.state.nj.us/2010/Bills/ACR/157_I1.PDF

[2] Lemon v. Kurtzman, 403 U.S. 602 (1971)