Supreme Court of the United States

Transcription

1 NO IN THE Supreme Court of the United States OCTOBER TERM 2015 GERALD BLACK, et al., Petitioners, versus JAMES WALSH and CINDY WALSH, On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF FOR PETITIONERS Respondents. TEAM 2419 Attorneys for Petitioners

2 QUESTIONS PRESENTED I. Does Pacifica Health & Safety Code Section 124.1, which is intended to increase the number of children who become immunized, violate the First Amendment s Establishment Clause by removing the personal-belief exemption while maintaining a sincere religious belief exemption? II. Does a public school violate the Fourteenth Amendment s Due Process Clause when it presents children with a public-health documentary based in scientific data that encourages, but does not require, children to share such information with their parents, when it reasonably knows that some parents may find the presentation objectionable? i

3 TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF AUTHORITIES...v OPINIONS BELOW...1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...1 STATEMENT OF THE CASE...1 I. STATEMENT OF FACTS...1 II. PROCEDURAL HISTORY...5 SUMMARY OF THE ARGUMENT...7 STANDARD OF REVIEW...10 ARGUMENT AND AUTHORITIES...11 I. THE ESTABLISHMENT CLAUSE ALLOWS THE STATE OF PACIFICA TO OFFER A RELIGIOUS EXEMPTION FROM CHILDHOOD VACCINATION WHILE ABOLISH- ING THE BROAD PERSONAL-BELIEF EXEMPTION...11 A. This Court Should Adopt the Coercion Test for All Establishment Clause Inquiries The coercion test is consistent with the Establishment Clause s text and history The Lemon/endorsement test provides no meaningful guidance to courts, governments, or citizens This Court s recent Establishment Clause jurisprudence has employed some form of coercion test...18 a. This Court recognized in Cutter v. Wilkinson that the Establishment Clause permits forms of religious accommodation...18 ii

4 b. This Court in Town of Greece v. Galloway abandoned the County of Allegheny no-accommodation standard and held the Establishment Clause permits non-coercive religious accommodations...21 B. Section Is Constitutional Under the Coercion Test Section is neutral with respect to religious sects Section does not coerce anyone into adopting a particular faith...24 a. Section follows the holding in Cutter...24 b. Section passes Town of Greece s coercion test...26 C. Alternatively, Section Is Constitutional Under the Lemon Test Section is grounded in the dual secular purpose of increasing the number of children immunized and respecting freedom of religious exercise The primary effect of Section neither advances nor inhibits religion Section does not excessively entangle the state with religion...30 II. REQUIRING UNVACCINATED STUDENTS TO VIEW THE TRUTH ABOUT VACCINES DOCUMENTARY AS PART OF THE SCHOOL CURRICULUM DOES NOT INTERFERE WITH ANY PROTECTED RIGHT OF PARENTS TO DIRECT THE UPBRINGING OF THEIR CHILDREN...31 A. Rational-Basis Review Is Appropriate Because Parents Do Not Have a Fundamental Liberty Interest to Dictate the Information Provided to Their Children as Part of School Curriculum...33 B. The School District s Curricular Choice to Use an Educational Documentary Survives Rational-Basis Scrutiny...35 C. Even if Parents Have a Fundamental Right to Teach Their Children Anti-Vaccination Information, the School District s Showing of the Truth About Vaccines Documentary Does Not Unconstitutionally Infringe upon That Right...37 CONCLUSION...39 iii

5 APPENDICES: APPENDIX A: Pac. Health & Safety Code Section 123 (2012)... A-1 APPENDIX B: Pac. Health & Safety Code Section (2015)...B-1 iv

6 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...10 Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...12, 20 Bd. of Educ. v. Pico, 457 U.S. 853 (1982)...35 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)...16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...10 Collins v. City of Harker Heights, 503 U.S. 115 (1992)...31, 33 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973)...12 Comm. for Pub. Educ. & Religious Liberty v. Reagan, 444 U.S. 646 (1980)...17 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)...20 County of Allegheny v. ACLU, 492 U.S. 573 (1989)...14, 16, 22 Cutter v. Wilkinson, 544 U.S. 709 (2005)... passim Emp t Div., Dep t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...19, 20 Epperson v. Arkansas, 393 U.S. 97 (1968)...35 v

7 Everson v. Bd. of Educ., 330 U.S. 1 (1947)...11, 12 Grutter v. Bollinger, 539 U.S. 306 (2003)...35 Hobbie v. Unemployment Appeals Comm n of Fla., 480 U.S. 136 (1987)...19 Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)...16 Lee v. Weisman, 505 U.S. 577 (1992)...14, 22, 23, 27 Lemon v. Kurtzman, 403 U.S. 602 (1971)...14, 29 Locke v. Davey, 540 U.S. 712 (2004)...19 Lynch v. Donnelly, 465 U.S. 668 (1984)...13 Marsh v. Chambers, 463 U.S. 783 (1983)...12 McCreary County v. ACLU of Ky., 545 U.S. 844 (2005)...16 McDaniel v. Paty, 435 U.S. 618 (1978)...13 McGowan v. Maryland, 366 U.S. 420 (1961)...12, 15 Meyer v. Nebraska, 262 U.S. 390 (1923)...32, 35 Morse v. Frederick, 551 U.S. 393 (2007)...10 Obergefell v. Hodges, 135 S. Ct (2015)...34 vi

8 Pierce v. Soc y of Sisters, 268 U.S. 510 (1925)...32 Prince v. Massachusetts, 321 U.S. 158 (1944)...32 Reno v. Flores, 507 U.S. 292 (1993)...31 Reynolds v. United States, 98 U.S. 145 (1878)...11 Roemer v. Bd. of Pub. Works, 426 U.S. 736 (1976)...12 Runyon v. McCrary, 427 U.S. 160 (1976)...32 Salazar v. Buono, 559 U.S. 700 (2010)...16 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963)...14 Town of Greece v. Galloway, 134 S. Ct (2014)... passim Troxel v. Granville, 530 U.S. 57 (2000)...32, 37, 38 Utah Highway Patrol Ass n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011)...16 Walz v. Tax Comm n, 397 U.S. 664 (1970)...14 Washington v. Glucksberg, 521 U.S. 702 (1997)...31 Welsh v. United States, 398 U.S. 333 (1970)...24 Wisconsin v. Yoder, 406 U.S. 205 (1972)...33 vii

9 UNITED STATES COURT OF APPEALS CASES: Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005)...33 Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995)...34, 38, 39 Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005)...34, 35 Kreisner v. City of San Diego, 1 F.3d 775 (9th Cir. 1993)...11, 12 Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003)...33, 34 Madison v. Riter, 355 F.3d 310 (4th Cir. 2003)...20 Parents United for Better Sch., Inc. v. Sch. Dist. of Phila. Bd. of Educ., 148 F.3d 260 (3d Cir. 1998)...34 UNITED STATES DISTRICT COURT CASES: Green v. Bd. of Cty. Comm rs, 450 F. Supp. 2d 1273 (E.D. Okla. 2006)...17 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. I...1, 11, 13 U.S. Const. amend. XIV...1, 31 viii

10 FEDERAL STATUTES: Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc-1(a)(1)-(2) (2012)...19 RULES: Fed. R. Civ. P. 56(c)...10 STATE STATUTES: Pac. Health & Safety Code Sec. 123 (2012)... passim Pac. Health & Safety Code Sec (2015)... passim SECONDARY SOURCES: PERIODICALS: Michael E. McConnell, Religious Participation at a Crossroads, 59 U. Chi. L. Rev. 115 (1992)...15 Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933 (1986)...17 Brian C. Nadler, Jurisprudential Juxtaposition: Resolving Establishment Clause Issues After Town of Greece, N.Y. v. Galloway, 50 Gonz. L. Rev. 75 (2015)...13 ix

11 BOOKS: Phillip Hamburger, Separation of Church and State (2002)...15 INTERNET SOURCES: Ctrs. for Disease Control & Prevention, History of Vaccine Safety, ensuringsafety/history/index.html (last visited on Sept. 24, 2015)...35 Ctrs. for Disease Control & Prevention, Measles Cases and Outbreaks, (last accessed Sept. 21, 2015)...29 Family Health Team, Cleveland Clinic, Vaccines That Save Lives Around the Word, vaccines-that-save-lives-around-the-worldinforgraphic/ (last visited Sept. 24, 2015)...36 Clyde Haberman, A Discredited Vaccine Study s Continuing Impact on Public Health, N.Y. Times (Feb. 1, 2015), OTHER AUTHORITIES: 1 Annals of Cong. 730 (Aug. 15, 1789)...15 x

12 LEGISLATIVE HISTORY: Pac. Legis. Rec. 14/ Pac. Legis. Rec. 14/ xi

13 OPINIONS BELOW The opinion and order of the United States District Court for the District of Pacifica is unreported and set forth in the record. R. at 1 6. Likewise, the opinion of the United States Court of Appeals for the Twelfth Circuit is unreported and set forth in the record. R. at CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the First and Fourteenth Amendments to the United States Constitution. The First Amendment. provides: 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. I. The Fourteenth Amendment provides: in pertinent part that no state shall... deprive any person of life, liberty, or property, without due process of law, which includes both procedural and substantive protections. U.S. Const. amend. XIV, 1. The relevant statutory provisions from the Pacifica Health and Safety Code are set forth in the Appendix as follows: 1. Appendix A: Pac. Health & Safety Code Section 123 (2012); and 2. Appendix B: Pac. Health & Safety Code Section (2015). STATEMENT OF THE CASE I. STATEMENT OF FACTS To protect public health, while respecting the free exercise of religion, the State of Pacifica amended its statutory provision to no longer allow for personal-belief exemptions from childhood vaccines. R. at 10. The West Beverly School District (together, State ) presented a science-based documentary, The Truth About Vaccines, to unvaccinated students, as it was deemed to be an effective educational tool. R. at 3. The state s goal is to increase the 1

14 protections offered to the general public and to school children through childhood vaccines, as immunization is most effective when those who remain non-immunized are kept to a minimum. R. at 10. The widely reported 2014 California measles outbreak served as a justification for these statutory revisions. R. at 10. The epicenter of the outbreak was Disneyland a place where children are in close quarters in high numbers, much like public schools. R. at 2. Outbreaks of diseases once thought to be relegated to the history books of medicine have reemerged as real and present threats to public health due to the number of children who remain unimmunized. The Pacifica State Legislature acknowledges that Pacificans who currently have personal-belief exemptions are putting their children in harm s way based upon their beliefs in false science. They also put other children in harm s way by decreasing the effectiveness of what scientists call herd immunity. Pac. Legis. Rec. 14/6783; R. at 2. Pacifica Health and Safety Code Section 123 requires childhood vaccination for diphtheria, haemophilus influenza type b, measles, mumps, pertussis (whooping cough), poliomyelitis, rubella, tetanus, hepatitis B, varicella (chickenpox), and any other disease deemed appropriate by the state. R. at 7. Further, Section 123 requires immunization of all those admitted to any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center. R. at 7. This leaves homeschooling as an educational option for children who remain unimmunized. R. at 7. Prior to the revision of Section 124.1, Pacifica maintained lenient exemption policies, which included the personal-belief exemption, typically utilized by parents who wrongly question the efficacy and safety of immunization. R. at 3 4. Pacifica s former personal-belief exemption is functionally similar to California s personal-belief exception, which has been 2

15 heavily blamed for the outbreaks which occurred there and in other states across the nation. R. at 2. The burdens for gaining this exemption were minimal. R. at 10. Indeed, all that parents or legal guardians needed to do to gain an exemption for their children was to claim a personal belief against immunization. R. at 10. While Pacifica has not yet experienced an outbreak of measles, the state has taken common sense, precautionary actions to ensure the health and safety of its citizens and school children. R. at 2. The state seeks to reduce the number of children who remain unvaccinated by tightening its previously broad exemption policy. R. at 10. Pacifica Health & Safety Code Section eliminates the availability of an exemption based solely upon personal-belief while maintaining exemptions for the medically unfit and religious objectors. R. at In so doing, the legislature acknowledges that [a]lthough we recognize the importance of vaccinations to our public health, we equally value religious freedom in our state. Pac. Legis. Rec. 14/6935; R. at 3. Parents James and Cindy Walsh (together, Walshes ) have invoked the personal-belief exemption on behalf of their children for four years under the previous exemption regime. R. at 10. The Walshes do not claim a religious exemption and instead seek an exemption for their children to remain unvaccinated based upon their personal beliefs. R. at 10. The Walshes have indicated that they believe that immunization somehow causes autism and that the proven medical benefits of immunization are exaggerated by pharmaceutical manufacturers to trick the public into buying their products. R. at 3. The Walshes have further indicated that their beliefs are based to a great extent on self-conducted internet research. R. at 4. With the passage of Pacifica Health and Safety Code Section 124.1, the Walshes can no longer qualify to have their children exempted from receiving immunizations. R. at 4. This serves as the basis for their 3

16 claim that the Section violates the Establishment Clause and their request for declaratory and injunctive relief to prevent implementation of the new law. R. at 4. The West Beverly School District has a health protocol which disallows children who are unimmunized and those presenting signs of certain communicable illnesses, such as the flu, from participating in field trips. R. at 3. The purpose of this school policy is to protect unvaccinated children. R. at 3. Here, the fourth grade class, in which the Walsh children were enrolled, was attending a field trip to a local petting zoo. R. at 3. To make this separation more enjoyable and educational for the unvaccinated children, the principal of the West Beverly Elementary School showed the science-based documentary The Truth About Vaccines to the exempted children. R. at 3. The educational documentary was provided to all school districts in the State of Pacifica by John Smith, Pacifica Superintendent of Public Education. R. at 3. The documentary was created by a group of physicians with the purpose of demonstrating the effectiveness of vaccines. R. at 3. The documentary was created for school children ages 8 12, and explains two central themes about vaccines. R. at 3. First, that vaccines have not been proven to cause autism or other serious or widespread harms, and second, that vaccines are inherently more effective when more people in a given population are immunized. R. at 3. It concludes by showing a family which originally objected to vaccination, consenting to their children becoming vaccinated in light of the information presented. R. at 3. Furthermore, the film invites the viewer to share the information presented in the documentary with others. R. at 3. As the Walshes children are unvaccinated, they were a part of the group of students separated out of concern for their own safety. R. at 4. Consequently, they were shown the documentary. R. at 4. The Walsh children subsequently questioned their parents why they were not vaccinated and expressed a desire to become immunized. R. at 4. The Walshes assert that 4

17 upon explanation of their beliefs about vaccines, the children doubted their competence on the subject and demonstrated a general lack of respect for their authority. R. at 4. This serves as the basis for the Walshes Due Process claim; that their Fourteenth Amendment rights as parents for the care, custody, and control of their children were violated. II. PROCEDURAL HISTORY The Walshes challenge the constitutionality of actions taken by the State of Pacifica to increase the number of students who become vaccinated. R. at 1. The Walshes allege that changes in the Pacifica Health and Safety Code, eliminating the personal-belief exemption to the mandatory vaccination of children, violate the Establishment Clause. R. at 1. The Walshes sought to enjoin application of the statute to their children. Additionally, they alleged that the West Beverly School District s showing of a science-based documentary concerning vaccines to their children, violates their parental rights claimed to be protected under the Due Process Clause. Parties filed cross motions for summary judgment. R. at 1. The District Court for the District of Pacifica granted the state s motion on the Establishment Clause claim and denied the Walshes motion on the same. R. at 1. The district court also granted the Walshes motion on the Due Process claim and denied the state s motion on the same. R. at 10. The district court relied on Town of Greece v. Galloway, holding that Section does not violate the Establishment Clause as it is not coercive. R. at 10. The district court read Town of Greece as adopting a coercion test for Establishment Clause claims rather than an endorsement test or a version of the Lemon test. R. at 10. Additionally, the district court held that the Walshes argument overlooks the holding in Cutter v. Wilkinson, which allows for religious accommodation, especially when governments impose burdens on individuals free exercise rights. R. at 4. The district court held that Cutter allows for the court to weigh the 5

18 effects on non-beneficiaries, here the Walshes, and determined that the Pacifica legislature made a policy choice that could tolerate a limited number of religious exemptions while still maintaining the benefits of mass immunization. R. at 4. The district court also noted that County of Allegheny has been superseded by the coercion test in Town of Greece. R. at 5. On the Due Process claim, the district court found the Walshes reliance on Troxel v. Granville convincing, holding that the care, custody, and control of their children was undermined when the school showed them a video which is contrary to their teachings at home. R. at 5. Noting that the Supreme Court has not addressed the application of Troxel to the curricular setting in public schools, the district court relied on circuit court decisions, namely Parker v. Hurley (rejecting parents rights claims who objected to teachers reading books about equal marriage in class) and Fields v. Palmdale School District (school-sponsored survey containing questions of sexual nature did not violate parent s rights to control the education of their children) to find that the West Beverly School District had attempted to indoctrinate the children. R. at 5. The Walshes appealed the dismissal of their Establishment Clause claim, and the state cross-appealed the grant of summary judgment to the Walshes on their Due Process claim to the United States Court of Appeals for the Twelfth Circuit. The court of appeals reversed the grant of summary judgment to the state on the Establishment Clause and held the statute to be unconstitutional. The court of appeals also affirmed the grant of summary judgment in favor of the Walshes on their Due Process claim. The court of appeals found that the lower court was correct to examine Cutter v. Wilkinson, but that it then failed to apply its holdings. R. at 11. The court of appeals held that the lower court misapplied Cutter in three ways. First, that Section provides for the automatic 6

19 granting of a religious exemption with no weighing of the burdens such an exemption would place on non-beneficiaries. R. at 11. Second, that the state has no unique interest in the class covered by the statute, here religious parents, as a parent may home school to avoid the requirements, as opposed to the institutionalized inmates in Cutter. R. at 11. Third, that it is impossible not to view the exemption as a benefit. R. at 11. Finally, the court of appeals held that Town of Greece does not alter Establishment Clause jurisprudence by requiring a coercion test, and that the holding of the case should only apply to similar cases involving a historical religious context, such as civic prayer. R. at 12. In place of Town of Greece, the circuit court applied the test from Lemon v. Kurtzman. R. at 12. On the Due Process claims, the court of appeals affirmed the lower court, holding that the state must offer a compelling interest to encroach upon parents due process rights, and that its actions must be narrowly tailored to meet that interest. R. at Judge Menendez wrote an opinion concurring with the Establishment Clause ruling but dissenting from the conclusion on the Due Process claim. R. at 14. Judge Menendez wrote that Meyer v. Nebraska and Pierce v. Society of Sisters stand for the proposition that the government cannot prevent parents from selecting a specific educational program for their children. R. at 14. Under this proposition, Judge Menendez explains that the Walshes could have selected another educational program which did not show the educational documentary or that they could have educated their children at home regarding the topic covered in the film, but that they do not possess a right to control the curriculum itself. R. at 15. SUMMARY OF THE ARGUMENT Pacifica s passage and implementation of Section does not violate the Establishment Clause. The First Amendment permits Pacifica to abolish the broad personal-belief exemption to 7

20 mandatory childhood vaccination while also maintaining a religious exemption. To determine if an Establishment Clause violation has occurred, this Court should adopt the coercion test. The coercion test is in concert with the holdings in Cutter v. Wilkinson and Town of Greece v. Galloway. A traditional understanding of the religious clauses requires that a historical framework be maintained when deciding what state actions are constitutional. The religion clauses fulfill the need to protect the free exercise of religion through government action, so long as such action creates no establishment of any particular religion, especially when considered against the background of American history. Within this context the First Amendment can be properly understood as to not prohibit legislation such as Section 124.1, which by any reasonable measure does not create dangers which the Establishment Clause was designed to prevent. Under Cutter, Pacifica may pass laws, such as Section 124.1, which accommodate religious freedom without violating the Establishment Clause. Section is nothing more than a constitutional accommodation of the free exercise of religion. States may raise the ceiling through statutory frameworks the freedom to exercise one s religious beliefs; what is not permissible is for states to lower the floor. Pacifica is also allowed according to Cutter to alleviate exceptional government-created burdens on private religious exercise. Section ensures that religious Pacificans can exercise their most basic First Amendment freedoms. Finally, Cutter dictates that religious accommodations need not come packaged with equivalent secular benefits. As such, Pacifica may permissibly provide religious accommodations, as in the form of an exemption to mandatory childhood vaccines, without providing an equivalent benefit to those claiming a secular, personal belief. 8

21 Town of Greece s coercion test is composed of three parts and each is passed by Section First, Pacifica does not order the Walshes to participate in religion through Section Second, the state does not criticize the Walshes for not participating in religion. Finally, Pacifica does not hold out that state action or inaction is contingent upon their participation in religion. The continued application of the Lemon test has been criticized by a majority of the sitting Supreme Court justices. This case provides an opportunity to the Court to abandon the Lemon/ establishment test in favor of the coercion test most recently applied in Cutter and Town of Greece. Even if this Court were to apply the Lemon test, Section is constitutional. The State of Pacifica, in enacting Section 124.1, has acted with the dual secular purpose of increasing the number of children immunized while respecting freedom of religious exercise. Section has the primary effect of increasing the number of children who become immunized by ending the personal-belief exemption. It has no primary effect of advancing religion. Finally, Pacifica remains free from excessive entanglement, indeed any entanglement at all, with religion in its passage of Section The Walshes fail to allege a substantive Due Process claim because although this Court recognizes a fundamental right of parents to make decisions concerning the care, custody and control of their children, this right does not extend into the classroom allowing parents to control the curriculum and educational materials selected by schools. As there is no fundamental liberty interest, the West Beverly School District s decisions to show The Truth About Vaccines is subject only to rational basis scrutiny. The School District has a legitimate interest in promoting public health. Vaccination and the promotion thereof has long been an integral part to protecting students from preventable diseases, many which have been virtually eradicated, and in protecting the general population from such diseases. Schools may select the curriculum and pedagogical 9

22 tools used in the education process, and this can include documentary videos. The video The Truth About Vaccines was created by doctors and based upon science. Considering the outbreak of measles that has occurred in California, West Beverly School District acted entirely within the pursuit of its legitimate interest in the promotion of public health when it used the film. Additionally, presenting the educational documentary The Truth About Vaccines is rationally related to the school district s legitimate interest in the promotion of public health. STANDARD OF REVIEW The district court resolved the dispute by granting one of two cross motions for summary judgment. R. at 9. A reviewing court applies the same standard as the district court. Morse v. Frederick, 551 U.S. 393, (2007). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the non-moving party, demonstrates no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact will exist if a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court of appeals recognized that the facts were not in dispute. R. at 10. As such, the only issues before this Court are legal in nature; therefore fact analysis is unnecessary. This Court reviews these underlying questions of law de novo. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under the appropriate standard, the city is entitled to summary judgment. 10

23 ARGUMENT AND AUTHORITIES I. THE ESTABLISHMENT CLAUSE ALLOWS THE STATE OF PACIFICA TO OFFER A RELIGIOUS EXEMPTION FROM CHILDHOOD VACCINATION WHILE ABOLISHING THE BROAD PERSONAL-BELIEF EXEMPTION. The first constitutional challenge is based on the mandatory immunization requirements for school children contained in the Health and Safety Code. The Walshes contend that the recent changes eliminating the personal-belief exemption while maintaining a religious exemption violate the Establishment Clause, and they seek to enjoin application of that statute to their children for the upcoming school year. The First Amendment s Establishment Clause provides that Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. The principles underlying religious freedom, like most respected social values, are difficult to define. Kreisner v. City of San Diego, 1 F.3d 775, 779 (9th Cir. 1993). However, this Court has generally articulated the limitations of the Establishment Clause s coverage and scope in the course of adjudicating specific cases: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion... Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. Everson v. Bd. of Educ., 330 U.S. 1, (1947). Many regard the First Amendment s Establishment Clause as the mechanism to erect a wall of separation between the Church and State. Reynolds v. United States, 98 U.S. 145, 164 (1878). But the Establishment Clause was enacted to convey the idea that religious worship is both a responsibility and a decision that should ultimately be committed to the private sector. 11

24 Kreisner, 1 F.3d at 781. Thomas Jefferson and James Madison led the fight against government interference in the religious sector, arguing that a true religion did not need the support of the law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Everson, 330 U.S. at 12. Religious beliefs and spiritual expression are too valuable to be either proscribed or prescribed by a governmental entity. Id. Therefore, this Court has given the First Amendment a broad interpretation in light of its purpose and the evils it was designed to overcome. McGowan v. Maryland, 366 U.S. 420, 442 (1961). But an absolute wall of separation is impossible. Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014). For example in Marsh v. Chambers, this Court upheld the practice of legislative prayer based on its unambiguous and unbroken history of more than 200 years a history that made legislative prayer part of the fabric of our society. 463 U.S. 783, 792 (1983). Neutrality is what is required by the Establishment Clause neither endorsement nor hostility, neither favoritism nor discrimination, but neutrality. Roemer v. Bd. of Pub. Works, 426 U.S. 736, 747 (1976) (Blackman, J., concurring). It is a proper respect for both the Free Exercise and the Establishment Clauses [that] compels the State to pursue a course of neutrality toward religion. Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, (1973). For it is only by maintaining impartiality bit animosity, toward religion that the government can fully protect the object of the religion clauses the right to believe or not to believe as one chooses. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 717 (1994) (O Connor, J., concurring). 12

25 This case is a clear attempt by the Walshes to force the government to build an absolute wall of separation between church and state. Never has that goal been permitted by this Court. See, e.g., McDaniel v. Paty, 435 U.S. 618, 642 (1978) (Brennan, J., concurring) ( The Establishment Clause should not be used as a sword to justify the repression of religion. ); Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (explaining that eradicat[ing] religion entirely from the public sphere is not the Establishment Clause s goal). The First Amendment only prohibits the government from respecting an establishment of religion, not those merely respecting religion itself. U.S. Const. amend. I. Only those actions tending to establish religion by conferring an unreasonable benefit or coercing religious involvement violates the First Amendment. Cutter v. Wilkinson, 544 U.S. 709, 720 (U.S. 2005). The state did not prefer one religion over the other, or send[] a message to nonadherents that they are outsiders by eliminating the personal-belief exemption while maintaining a religious exemption to the mandatory immunization requirements. Lynch, 465 U.S. at 688. For that reason, the state did not violate the Establishment Clause s neutrality requirement. A. This Court Should Adopt the Coercion Test for All Establishment Clause Inquiries. As a threshold matter, this case gives the Court the opportunity to clarify which test should apply to challenges under the Establishment Clause. The conflict and confusion in the courts as to which Establishment Clause analysis to apply and how to apply it have caused great chaos and confusion for communities, public school administrators, and school board members when questions regarding the role of religion in public schools arise. Brian C. Nadler, Jurisprudential Juxtaposition: Resolving Establishment Clause Issues After Town of Greece, N.Y. v. Galloway, 50 Gonz. L. Rev. 75, 81 (2015). Questions regarding the role of religion in public schools are pervasive and frequent across the nation. 13

26 The district court analyzed the case by using the coercion test first articulated by Justice Kennedy in County of Allegheny v. ACLU. R. at 4 (citing 492 U.S. 573, 659 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part)). Under the coercion test, government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so. Lee v. Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch, 465 U.S. at 678). The court of appeals analyzed the case by using the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, a statute or government activity must: (i) have a secular... purpose ; (ii) have a principal or primary effect... that neither advances nor inhibits religion ; and (iii) not foster an excessive government entanglement with religion. Id. at (citation omitted) (quoting Walz v. Tax Comm n, 397 U.S. 664, 674 (1970)). This Court should adopt the coercion test as the overarching framework for Establishment Clause cases. Not only does the analysis return to the roots of the Establishment Clause, consistent use of the coercion test would help government and public schools handle these issues in a way that ensures government neutrality. 1. The coercion test is consistent with the Establishment Clause s text and history. [T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring). The coercion test best captures the Framers understanding of what constituted an establishment of religion as that term is used in the First Amendment and a principal evil to be avoided by prohibiting such an establishment. The writings of James Madison, George Mason, and Thomas 14

27 Jefferson suggest that all of them viewed the elimination of government coercion or compulsion as being at the heart of religious freedom. As this Court has noted, during debate on the religion clauses in Congress in 1789, James Madison, the measures sponsor, said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.... He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. McGowan, 366 U.S. at 441 (quoting 1 Annals of Cong (Aug. 15, 1789)) (emphasis added). The separation of church and state is no doubt embodied in the First Amendment in both the religious clauses. This political philosophy, however, with origins in Thomas Jefferson s letter to the Danbury Baptists in 1802, has been wrongly construed to be used in such a way that sterilizes public life of anything relating to the religious or sacred, when the effect was, in actually, meant to be the opposite. Phillip Hamburger, Separation of Church and State 481, 486 (2002). The essence of this Jeffersonian disestablishmentarianism aided religious practitioners, especially those in the minority, in the free and unabridged pursuit of their faith. It was a government that would establish religion which threatened that freedom, through various forms of coercion. Coercion then, if history is considered, ought to be the measure of an Establishment Clause violation. See Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 937 (1986). This test honors the original understanding of the Establishment Clause and its place within the First Amendment. 15

28 2. The Lemon/endorsement test provides no meaningful guidance to courts, governments, or citizens. The Court is presented with the opportunity to move past the Lemon test. Once and for all the Court can put to rest the test which Justice Scalia has likened to some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried. Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring). Establishment Clause doctrine has long been beleaguered by an ambiguity which inspires little confidence in the justices of this Court. The continued application of the Lemon test has been criticized by a majority of the this Court. See, e.g., Utah Highway Patrol Ass n v. Am. Atheists, Inc., 132 S. Ct. 12, 17 (2011) (Thomas, J., dissenting from denial of certiorari) (agreeing with the assessment that the endorsement test amounted to unguided examination of marginalia using little more than intuition ) (internal quotation marks omitted); Salazar v. Buono, 559 U.S. 700, 717 (2010) (plurality opinion of Kennedy, J., joined in full by Roberts, C.J., and in part by Alito, J.) (criticizing the workability of the endorsement test); id. at 728 (Alito, J., concurring in part and concurring in the judgment); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (plurality opinion of Scalia, J.) (stating that the endorsement test supplies no standard whatsoever. ); Allegheny, 492 U.S. at 669) (Kennedy, J., concurring in the judgment in part and dissenting in part) ( [T]he endorsement test is flawed in its fundamentals and unworkable in practice. ); see also McCreary County v. ACLU of Ky., 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) ( [A] majority of the Justices on the current Court... have, in separate opinions, repudiated the brainspun Lemon test. ). This inconsistent treatment of the Lemon test and the uncertainty found in Establishment Clause doctrine generally makes it unclear how government actions will be treated by the courts, 16

29 leaving government bodies in the dark concerning their compliance with the First Amendment requirements and exposure to lawsuits. Lower courts and litigants are left in Lemon limbo, Green v. Bd. of Cty. Comm rs, 450 F. Supp. 2d 1273, (E.D. Okla. 2006), with the [s]isyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon. Comm. for Pub. Educ. & Religious Liberty v. Reagan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting). When governments legitimately try to respect free exercise rights through statutory frameworks, the ambiguity prevalent in Establishment Clause jurisprudence creates an opportunity for those who seek to jettison from public life anything which is religious. Those hostile to religion find a weapon hidden in current doctrine. To the extent that Lemon s purpose prong requires the government to turn a blind eye to the impact of its actions on religion, on the implicit assumption that secular effects are all that matter, it is a recipe for intolerance. Michael E. McConnell, Religious Participation at a Crossroads, 59 U. Chi. L. Rev. 115, 129 (1992). This is problematic not for the state and local governments sued, but for the Americans whose freedom to exercise their sincerely-held religious beliefs is put at risk. This is also the case even when the government seeks only to remove onerous burdens on religious practice it created and would not otherwise exist. Conversely, government actions which seek to thwart such lawsuits by excluding religiosity and religious practice from the public square become targets in Free Exercise Clause claims. While Establishment Clause doctrine may be murky, one thing is clear state and local governments find themselves at risk of being sued regardless of the policies they make regarding religion because the First Amendment is wielded as a doubleedged sword. Governments like the State of Pacifica, could act with more confidence in 17

30 protecting the free exercise of its citizens while guarding against the establishment of religion if the coercion test is adopted. 3. This Court s recent Establishment Clause jurisprudence has employed some form of coercion test. In the past decade, this Court has drifted from the Lemon test toward some form of the coercion test. Ten years ago in Cutter v. Wilkinson, this Court held that the Establishment Clause does not bar the accommodation of religion. 544 U.S. at 720. And just last term, this Court used the coercion test in Town of Greece v. Galloway. 134 S. Ct. at More importantly, however, the Town of Greece case repudiated Allegheny s sharp line between religion and nonreligion that has been used by lower courts to maintain the Lemon test and the notion of absolute separatism between church and state. Id. (recognizing that part of language was dictum that had been repudiated by later cases ). Read together, Cutter and Town of Greece signal that religious accommodations are permissible so long as they do not have a coercive effect on a non-believing third party. This Court should use the present case to turn that trend into binding precedent. a. This Court recognized in Cutter v. Wilkinson that the Establishment Clause permits forms of religious accommodation. Cutter acknowledged that religious accommodations are permissible, and that such accommodations need not march in lockstep with equivalent secular benefits. The petitioners there were current and former inmates of Ohio prisons who were adherents of nonmainstream religions. Cutter, 544 U.S. at 712. They complained that prison officials denied them access to religious literature, equal opportunities for group worship as afforded to mainstream practitioners, opportunities for religious dress and appearance, access to religious items substantially similar to those provided to mainstream practitioners, and chaplains trained in their 18

31 faiths. Id. at 713 (citing Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 804, 42 U.S.C. 2000cc-1(a)(1)-(2)). The inmates sued, claiming among other things that, if RLUIPA permitted the practices, then RLUIPA violated the First Amendment s Establishment Clause. Id. This Court held that prison officials had not violated the Establishment Clause. Id. at 725, Cutter included a number of profound statements related to the Establishment Clause. First, the State may accommodate religious exercise without violating the Establishment Clause. Id. at 713 ( This Court has long recognized that the government may... accommodate religious practices... without violating the Establishment Clause. ) (citing Hobbie v. Unemployment Appeals Comm n of Fla., 480 U.S. 136, (1987)). The Establishment Clause remains unoffended by government accommodation of religion beyond what the Free Exercise Clause requires, because there is room for play in the joints between the two Religion Clauses. Id. at 713 (citing Locke v. Davey, 540 U.S. 712 (2004)). RLUIPA was the latest of congressional efforts to provide heightened protection for the free exercise of religion from governmentimposed burdens. A decade prior to Cutter, this Court held in Employment Division, Department of Human Resources of Oregon v. Smith that the First Amendment s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. 494 U.S. 872, (1990). Specifically, Oregon s total ban on the possession of peyote without an accommodation for religious use was not barred by the Free Exercise Clause, allowing the state to deny unemployment benefits to people fired from their employment for sacramental use of the drug. Id. at 874, 890. Even so, this Court recognized... that the political branches could shield religious exercise through legislative accommodation, 19

32 for example, by making an exception to proscriptive drug laws for sacramental peyote use. Cutter, 544 U.S. at 714 (citing Smith, 494 U.S. at 890). Second, the Court in Cutter stated RLUIPA... compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. 544 U.S. at 720. The state need not be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Id. (citing Grumet, 512 U.S. at 705). Such accommodations are not coercive, or establishmentarian, as removal of government-imposed burdens on religious exercise is more likely to be perceived as an accommodation of the exercise of religion rather than as a Government endorsement of religion. Cutter, 544 U.S. at 720 (citing Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 349 (1987) (O Connor, J., concurring in judgment)). Finally, religious accommodations need not come packaged with benefits to secular entities. This Court in Cutter overturned the Sixth Circuit Court of Appeals conclusion that RLUIPA impermissibly advance[d] religion by giving greater protection to religious rights than to other constitutionally protected rights. 544 U.S. at 718. The Sixth Circuit court had speculated that affording religious prisoners rights superior to those of nonreligious prisoners, might encourage prisoners to become religious in order to enjoy greater rights. Id. This Court held that was inappropriate. Id. at 724 (citing Amos, 483 U.S. at 329 (upholding law exempting religious organizations from Title VII s prohibition against discrimination in employment on the basis of religion, against an Establishment Clause challenge)). In short [t]here is no requirement that legislative protections for fundamental rights march in lockstep. Madison v. Riter, 355 F.3d 310, 318 (4th Cir. 2003). This Court warned that were this to be true, all manner of religious accommodations would fall, and pointed to the limited 20

33 allowance for servicewomen and men to wear religious clothing while in uniform as vulnerable in such a scenario. Cutter, 544 U.S. at 724. b. This Court in Town of Greece v. Galloway abandoned the County of Allegheny no-accommodation standard and held the Establishment Clause permits non-coercive religious accommodations. This Court further clarified that coercion is the appropriate test in the Town of Greece v. Galloway. The Town of Greece had a practice of holding a moment of silence before its town board meetings. Town of Greece, 134 S. Ct. at The town changed its practice, and in place of a moment of silence, invited local clergy and faith leaders to lead prayers at the opening of the town board meetings. Id. Those present during the prayers generally include the town board members and town citizens present at the meeting. Id. According to town representatives, [t]he prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. Id. A minister or layperson of any persuasion, including an atheist, could give the invocation. Id. However as a practical matter, the majority of the town citizenry were Christian and so too were the faith leaders and clergy who volunteered to give the opening prayer at town board meetings. Id. Indeed, [s]ome of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine.... Id. Two residents attending the meetings found the prayers objectionable and offensive to their religious and philosophical views. Id. at After receiving their complaints, the town invited a local Jewish layperson, Baha i chairperson, and Wiccan priestess to give the invocation. Id. The residents claimed the town violated the Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers.... Id. They sought an 21

34 injunction limiting the town to inclusive and ecumenical prayer, referring only to a generic God to prevent the town from being associated with any single belief or faith tradition. Id. The holding in Town of Greece has three critical components as it relates to the question of which test is appropriate. First, Justice Kennedy writing for the majority disposed of the longlingering aspect of Allegheny 1 when he wrote, [t]he contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny... that was disputed when written and has been repudiated by later cases. Id. at Second, Justice Kennedy explained that the Coercion Test is the appropriate test for Establishment Clause claims. Id. at The prohibitions include that a governmental body may order no one to participate in religion or religious activity. Id. A governmental body may criticize no one who accepts no particular religious faith or creed. Id. A governmental body may not suggest that state action or inaction is contingent upon a person s religious beliefs or participation in such beliefs. Id. Third, Justice Alito, in his concurrence, explained that the coercion test is appropriate and met only when the government compels people to become followers of any particular faith and there is actual legal coercion, not merely subtle coercive pressure. Id. at 1838 (Alito, J., concurring). In doing so, he cited a passage from Lee v. Weisman that explained, [t]he coercion 1 The language in Allegheny that many used to justify an absolute wall of separation between church and state was as follows: However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.... The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had removed all references to Christ. Id. at 603 (quoting Marsh, 463 U.S. at 793 n.14). The dissenters in Allegheny warned that the Lemon/endorsement test would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer [such as] the forthrightly religious Thanksgiving proclamations issued by nearly every President since Washington. Id. at