Supreme Court of the United States

Transcription

1 No IN THE Supreme Court of the United States GERALD BLACK, ET AL., Petitioners, v. JAMES WALSH AND CINDY WALSH, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS FOR THE TWELFTH CIRCUIT BRIEF FOR RESPONDENTS 2404 Counsel for Respondents

2 QUESTIONS PRESENTED 1. The State of Pacifica used to allow people to be exempt from vaccination based on either personal belief or religious belief. The personal belief exemption was removed. Now, in order to qualify for an exemption from vaccines, an objector must profess faith in a religion. Does Pacifica Health & Safety Code violate the Establishment Clause of the First Amendment? 2. When parents choose not to vaccinate their children, the West Beverley School District does not allow the unvaccinated children to go on field trips. Instead, the students stay behind in their classroom and are shown a video which shows other children to delivering a message about the importance of vaccinations to their parents. The video concludes with an instruction for viewers to educate their own friends and family. Is the Due Process Clause of the Fourteenth Amendment violated when a public school exposes children to a public-health documentary it reasonably knows will contravene the wishes of parents? James Walsh and Cindy Walsh, LIST OF PARTIES TO THE PROCEEDING Plaintiffs/Appellants/Cross-Appellees Gerard Black, Governor of Pacifica John Smith, Superintendent of Public Education, and Yvonne Teasley, Principal of West Beverley Elementary School, Defendants/Appellees/Cross-Appellants i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i LIST OF PARTIES TO THE PROCEEDING... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv OPINIONS BELOW... viii JURISDICTIONAL STATEMENT... viii CONSTITUTIONAL AND STATUTORY PROVISIONS... viii STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 I. Pacifica s Health & Safety Code is Uncstonstitutional Because it Violates the Establishment Clause of the First Amendment to the United States Constitution A. The Coercion Test Adopted in Lee v. Weisman Compels the Finding that Violates the Establishment Clause by Forcing Vaccine Objectors to Adopt Religion B. Section is a Government Endorsement of Religion Violative of the Establishment Clause C. Section violates the Establishment Clause under the Lemon analysis Section does not have an entirely secular religious purpose Section advances religious practice Section results in excessive government entanglement with religious affairs II. Pacifica Officials Intruded upon James and Cindy Walsh s Substantive Due Process Rights under the Fourteenth Amendment by Indoctrinating their Children with the Documentary The Truth About Vaccines A. James and Cindy Walsh Have a Fundamental Interest in the Care, Custody, and Control of Their Children Which is Guaranteed by the Fourteenth Amendment History and tradition show that the Walshes parental interest is both ancient and expansive This fundamental interest is implicated, not when the interestholder is displeased with a child s curriculum, but when a school official s action intrudes upon the familial control protected by that interest ii

4 3. Forcing the Walsh children to watch The Truth About Vaccines under these circumstances was an intrusion on their parents fundamental interest in the care, custody, and control of the children B. The School Officials Decision to Show The Truth About Vaccines without Authorization Cannot Survive Strict Scrutiny Triggered for the Protection of the Walshes Fundamental Interest There was no compelling government interest in showing the documentary The manner in which school officials conveyed the information on vaccines was not narrowly tailored C. In the Absence of a Statutory Exemption, Showing the Documentary to Brandon and Brenda Walsh without Parental Authorization Fails Rational Basis Review CONCLUSION iii

5 United States Supreme Court Decisions TABLE OF AUTHORITIES Case Page Agostini v. Felton, 521 U.S. 203 (1997)... passim Bd. of Ed. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...11 Bd. of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (1990)...9 Bowen v. Kendrick, 487 U.S. 589 (1988)...24, 26 Caminetti v. United States, 242 U.S. 470 (1917)...19 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)...42, 43 Committee for Public Edu. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973)...6 County of Allegheny v. ACLU, 492 U.S. 573 (1989)...6, 8 Cutter v. Wilkinson, 544 U.S. 709 (2005)...12, 13 Edwards v. Aguillard, 482 U.S. 578 (1987)... passim Engel v. Vitale, 370 U.S. 421 (1962)...7 Epperson v. Arkansas, 393 U.S. 97 (1968)...16, 18 Everson v. Board of Education, 330 U.S. 1 (1947)...7 Griswold v. Connecticut, 381 U.S. 479 (1965)... passim Grutter v. Bollinger, 539 U.S. 306 (2003)...39 Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948)...7 Lamb s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)...16 Larson v. Valente, 456 U.S. 228 (1982)...16 Lee v. Weisman, 505 U.S. 577 (1992)... passim Lemon v. Kurtzman, 403 U.S. 602 (1971)... passim Loving v. Virginia, 388 U.S. 1 (1967)...33 iv

6 Lynch v. Donnelly, 465 U.S. 668 (1984)... passim Marsh v. Chambers, 463 U.S. 783 (1983)...9, 12 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005)... passim McGowan v. Maryland, 366 U.S. 420 (1961)...17 Meyer v. Nebraska, 262 U.S. 390 (1923)...31, 33, 34 Mueller v. Allen, 463 U.S. 388 (1983)...6, 22 Parham v. J.R., 442 U.S. 584 (1979)...32 Pierce v. Soc. of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)...33 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992)...33, 36, 37 Prince v. Massachusetts, 321 U.S. 158 (1944)...33 Quilloin v. Walcott, 434 U.S. 246 (1978)...32 Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976)...24 Romer v. Evans, 517 U.S. 620 (1996)...42 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)...12 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)...41 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)... passim Santosky v. Kramer, 455 U.S. 745 (1982)...29, 30, 32 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963)...7, 8, 13, 14 School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)...15 Shapiro v. Thompson, 394 U.S. 618 (1969)...39, 40 Skinner v. Oklahoma, 316 U.S. 535 (1942)...33 Stanley v. Illinois, 405 U.S. 645 (1972)...33 v

7 Stone v. Graham, 449 U.S. 39 (1980)...18 Town of Greece v. Galloway, 134 S. Ct (2013)...9 Troxel v. Granville, 530 U.S. 57 (2000)... passim Utah Highway Patrol Association v. American Atheists, Inc., 132 S. Ct. 12 (2011)...16 Wallace v. Jaffree, 472 U.S. 38 (1985)...21 Walz v. Tax Comm n of New York City, 397 U.S. 664 (1970)...15, 24 Washington v. Glucksberg, 521 U.S. 702 (1997)... passim Wisconsin v. Yoder, 406 U.S. 205 (1972)... passim Zelman v. Simmons-Harris, 536 U.S. 639 (2002)...5, 16, 24 Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)...22 United States Court of Appeals Decisions Anspach ex rel. Anspach v. City of Philadelphia, Dep't of Pub. Health, 503 F.3d 256 (3d Cir. 2007)...35, 36, 37 Arnold v. Board of Education of Escambia County, Alabama, 503 F.3d 256 (11th Cir. 1989)...35, 36, 37 Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005)...34 Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012)...16 Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000)...36 Leebaert v. Harrington, 332 F.3d 134 (2nd Cir. 2003)...34, 36, 38 Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001)...36, 38 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)...34 vi

8 Constitutional Provisions U.S. Const. amend. XI...5 U.S. Const. amend. XIV...29 Other Authorities The 2009 H1N1 Swine Flu Pandemic: Reconciling Goals of Patents and Public Health Initiatives, 20 Fordham Intell. Prop. Media & Ent. L.J. 991, 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 (2014)...11, 21 vii

9 OPINIONS BELOW The judgment of the United States District Court for the District of Pacifica can be found at Civ. No. LTA The judgment of the United States Court of Appeals for the Twelfth Circuit can be found at No This Court s grant of Certiorari is available at No JURISDICTIONAL STATEMENT The District Court had jurisdiction under 28 U.S.C because this case involves a civil action arising under the Constitution and laws of the United States. The Appellate Court had jurisdiction under 28 U.S.C The United States Court of Appeals for the Twelfth Circuit entered its judgment on July 3, This Court granted a writ of certiorari on July 20, This Court has jurisdiction under 28 U.S.C because this appeal is from a final judgment which disposes of all parties claims. The United States Court of Appeals for the Twelfth Circuit s decision qualifies as a [f]inal judgment or decree] within the meaning of that statute. CONSTITUTIONAL AND STATUTORY PROVISIONS Amendment I to the United States Constitution in relevant part states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... Amendment XIV to the United States Constitution states, in pertinent part: Section 1. No state... 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... viii

10 Pacifica Health and Safety Code ( 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 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. (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, Pac. Health & Safety Code (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 ix

11 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, REPEALED SECTION; REPLACED BY 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 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. x

12 STATEMENT OF THE CASE Factual History James and Cindy Walsh, along with their 10-year-old twins Brenda and Brandon, were recently compelled to adjust to a radical change in their lives. R. at 1. As of August 1, 2015, school children in the state of Pacifica would no longer be able to rely on the personal-belief exemption to the mandatory vaccination regime. R. at 1. Pacifica mandates that all of its students be immunized under Pacifica Health and Safety Code 123 for certain communicable diseases before enrolling in school. R. at 2. The previous vaccination regime allowed for three exemption options: a medical necessity exemption, a religious belief exemption, and a personal-belief exemption, under 124. R. at 1-2. The Pacifica legislature repealed the personal-belief exemption, but retained the religious belief exemption in the new of the Code ( ). R. at 2. The legislature justified keeping the religious belief exemption in no uncertain terms. R. at 3. The new lead sponsor, Senator James Wright, proclaimed that: 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 when it comes to raising our children. R. at 3 (quoting Pac. Legis. Rec. 14/935). According to Representative Bill Thomas: The purpose of removing the personal-belief exemption and tightening up the religious exemption is to prevent a Disneyland situation in Pacifica. We know that vaccines work. The science proves that. Many Pacificans who currently have personal-belief exemptions are putting their children in harm s way based upon their belief in false science. They also put other children in harm s way by decreasing the effectiveness of what scientists call herd immunity. R. at 2-3 (quoting Pac. Legis. Rec. 14/6783). Page 1 of 43

13 Although Pacifica had experienced no outbreak of communicable diseases like that which hit California in 2014, Pacifica school districts buttressed this legislative action with a documentary video called The Truth About Vaccines. R. at 3. The Pacifica Superintendent of Public Education provided copies of this documentary to all school districts in the state. R. at 3. The Truth About Vaccines features scientists explaining what they insisted was the misperceptions about vaccines. R. at 3. The documentary explains the science of vaccines, demurring any health risks such as autism and touting herd-based immunity. R. at 3. The documentary features confrontations between child and parent and eventual reconciliation of the depicted parent to the cause of vaccination. R. at 3. The video uses actual children to portray this process. R. at 3. The Truth About Vaccines finishes with the tagline: Now that you know the truth about vaccines, it s up to you to spread that truth to your family and friends. R. at 3. Yvonne Teasley, Principal of West Beverly Elementary the school attended by Brenda and Brandon Walsh prohibited them from attending field trips to reduce the risk of communicable diseases. R. at 3. In lieu of a field trip to a petting zoo, Brenda Walsh, Brandon Walsh, and their classmates stayed behind for Ms. Teasley s fun, pre-planned activities at the school. R. at 3. One activity that day included showing the unvaccinated students The Truth About Vaccines. R. at 3. James and Cindy Walsh had previously relied upon the old personalbelief exemption to the vaccination regime. R. at 1, 4. According to Cindy Walsh s deposition, after the children viewed the video they questioned her reasoning for refusing to have them vaccinated for the past few years. R. at 4. They then asked to be vaccinated. R. at 4. When she explained her health concerns regarding vaccines, the children disrespectfully questioned her competence. R. at 4. Page 2 of 43

14 Procedural History James and Cindy Walsh sued Pacifica officials, including Pacifica Governor Gerald Black, Superintendent of Public Education John Smith, and West Beverly Elementary Principal Yvonne Teasley ( Petitioners or Pacifica officials ), claiming first that the legislature s repeal of the personal belief exemption while maintaining the religious belief exemption violated the Establishment Clause of the First Amendment. R. at 1. Next, they argued that the School District s policy of forcing only unvaccinated children to watch The Truth About Vaccines intrudes upon their fundamental interest as parents in the care, custody, and control of Brenda and Brandon, guaranteed in the Due Process Clause of the Fourteenth Amendment. R. at 1. James and Cindy Walsh seek to enjoin application of in the upcoming school year. R. at 1. They also seek a declaration that their substantive due process rights as parents were violated by showing their children The Truth About Vaccines in the manner and setting in which Pacifica officials did. R. at 1. They likewise seek to enjoin any future showings of the documentary to Brenda and Brandon. R. at 1. The United States District Court for the District of Pacifica granted Petitioners cross motion for summary judgment on the Establishment Clause claim while granting Respondents cross motion for summary judgment on the Due Process Clause claim. R. at 1. On review, the United States Court of Appeals for the Twelfth Circuit reversed the judgment for Pacifica on the Establishment Clause claim and affirmed summary judgment on the Walshes Due Process claim. R. at 9. Pacifica officials petitioned for writ of certiorari to review the judgments of the Court of Appeals for the Twelfth Circuit, which this Court granted. R. at 9. SUMMARY OF THE ARGUMENT Section of State of Pacifica s Health and Safety Code presents a violation of the First Amendment of the United States Constitution via the Establishment Clause. The Page 3 of 43

15 Establishment Clause prohibits government from making any laws respecting establishment of religion. However, when the Pacifica legislature eliminated the personal-belief exemption, it forced the Walshes to make a choice between converting to a religion that would grant them an exemption from vaccination, vaccinating their children against their will, or pulling their children out of public schools. This choice effectively coerces the Walshes to join a religion to maintain their way of life, as the burden of finding alternative schooling is far too high. This is contrary to this Court s jurisprudence, which has condemned schools coercing children to participate in religious activities by virtue of attending graduation ceremonies or football games, activities which are markedly less compulsory than general school attendance. The elimination of the personal-belief exemption also is an endorsement of religion over nonreligion contrary to the Constitution, rather than a mere accommodation. It confers a benefit solely to religious people that does not carry a corresponding benefit to the nonreligious. Finally, does not have an entirely secular purpose because it is does not have a primary secular purpose, but a religious purpose. In addition, it fosters excessive entanglement between the state and religion because it only benefits the religious and religious institutions. Pacifica official s decision to show The Truth About Vaccines to unvaccinated students at West Beverly Elementary School intruded upon the Walshes fundamental interest in the care, custody, and control of their children Brenda and Brandon. It therefore triggers strict scrutiny and fails under this rigorous review. Showing the documentary in this manner cannot survive review because the action (a) was not conducted pursuant to a compelling governmental interest, and; (b) even if there was a compelling interest in education, this act was not narrowly tailored to serve that interest. Furthermore, showing the documentary, in the absence of a personal belief Page 4 of 43

16 exemption from vaccination, was not rationally related to any legitimate state interest in persuading obstinate parents of unvaccinated children. ARGUMENT Cindy and James Walsh ask this Court to reject Petitioners claims and affirm the Court of Appeals for the Twelfth Circuit on both its Establishment Clause and Due Process Clause rulings. Specifically, it asks for declaratory and injunctive relief to the effect that: (1) the Pacifica legislature violated the Establishment Clause in repealing the personal-belief exemption while maintaining the religious belief exemption to mandatory child vaccinations and; (2) the Pacifica school officials intruded upon Cindy and James Walsh s fundamental interest in the care, custody, and control of their children by forcing the children to watch The Truth About Vaccines without giving notice to their parents. I. PACIFICA S HEALTH & SAFETY CODE IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION. This Court should affirm the judgment of the Court of Appeals for the Twelfth Circuit and hold that the State of Pacifica s Health and Safety Code ( ) violates the Establishment Clause of the First Amendment to the United States Constitution ( Establishment Clause ). (R. at 16). The Establishment Clause is applied to the states through the Fourteenth Amendment. Zelman v. Simmons-Harris, 536 U.S. 639, 648 (2002). The text of the Clause itself states unequivocally that Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. Yet when the State of Pacifica and the West Beverley School District removed the personal belief exemption from law, the message to the Walshes was clear: convert to a religion that will gain them the exemption they seek, vaccinate their children against their will, or pull their children out of public schools entirely. The choice they have been forced to make is unacceptable under our Constitution, which guarantees that government may not coerce Page 5 of 43

17 anyone to support or participate in religion or its exercise. Lee v. Weisman, 505 U.S. 577, 578 (1992), quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984). Keeping with the spirit of the Establishment Clause, this Court should find that stands as a subtle yet powerful mechanism to force faith upon the Walshes in direct violation of the Constitution. In each case [involving a potential Establishment Clause violation], the inquiry calls for line-drawing; no fixed, per se rule can be framed. Lynch, 465 U.S. at 678. The Clause erects a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship. Id. at 679, (quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971)). The analysis of Establishment Clause violations has centered upon three different tests: the coercion test, the endorsement test, and the Lemon test. See Id. In the decades following its inception, the Lemon test has been the most oft-used test to analyze a potential Establishment Clause violation. See Lemon, 403 U.S. at 614; McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). In general terms, this test examines whether the statute has a secular purpose, whether it has the effect of advancing or inhibiting religion, and whether it fosters excessive government entanglement with religion. Lemon at However, the Lemon test is far from acknowledged as the premier standard to be employed in any case involving an Establishment Clause violation. Even in cases where it has been applied, this Court has signaled significant doubts over the conclusive nature of the Lemon test, at times referring to it as a signpost or guideline while also emphasizing unwillingness to be confined to any single test or criterion in this sensitive area. County of Allegheny v. ACLU, 492 U.S. 573, 656 (1989) (KENNEDY, J. dissenting) (quoting Mueller v. Allen, 463 U.S. 388, 394 (1983); Committee for Public Edu. & Religious Liberty v. Nyquist, 413 U.S. 756, 772, n. 31 (1973); Lynch, 465 U.S. at 679). In addition, the test has seen considerable revision, and, in some Page 6 of 43

18 cases, a complete abandonment of two of the three prongs. See Agostini v. Felton, 521 U.S. 203 (1997) (applying the second and third prong only and examining whether the government is indoctrinating, determining benefit recipients based on religion, and causing excessive entanglement between government and religion); Engel v. Vitale, 370 U.S. 421 (1962) (only applying the second prong). Some of the sharpest criticism has come from Justice O Connor, who directly questioned the basis of the Lemon test, stating, It has never been entirely clear... how the three parts of the test relate to the principles enshrined in the Establishment Clause. Lynch, 465 U.S. at Over twenty years before the Lemon test was even established, Justice Black articulated the main principles driving the separation of church and state under the Establishment Clause in Everson v. Board of Education: Neither a state nor the Federal Government can... pass laws which aid one religion, aid all religions.... Neither can force nor influence a person to go to or remain from church against his will or force him to profess a belief or disbelief in any religion. 330 U.S. 1, (1947). These principles have been present for ages; still ten years before Lemon this Court quoted Judge Alphonso Taft from an unpublished opinion 100 years prior, saying in regards to religious freedom, The government is neutral, and, while protecting all, it prefers none. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215 (1963). Separation means separation, not something less. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948). A. THE COERCION TEST ADOPTED IN LEE V. WEISMAN COMPELS THE FINDING THAT VIOLATES THE ESTABLISHMENT CLAUSE BY FORCING VACCINE OBJECTORS TO ADOPT RELIGION. Contrary to the Twelfth Circuit s assertion, the adoption of the coercion test in this case makes the Walshes case more compelling. R. at 12. The coercion test was established in Justice Page 7 of 43

19 Kennedy s dissent in County of Allegheny v. ACLU, where he proposed Establishment Clause violations be analyzed in light of two principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact establishes a [state] religion or religious faith, or tends to do so. 492 U.S. at 659 (KENNEDY, J., dissenting) (quoting Lynch, 465 U.S. at 678). He clarified this test, explaining that coercion need not be a direct tax in aid of religion or a test oath. Symbolic recognition or accommodation of religious faith may violate the Clause in an extreme case. Id. at 661. This case presents such an extreme accommodation. The coercion test s application in Lee v. Weisman should control its application here. In Lee, this Court examined the propriety of nonsectarian prayer at a middle school graduation. 505 U.S. at 581. The prayer was given by a rabbi, who crafted it with vague references such as God of the free, hope of the brave in order to conform with guidelines for civic prayer supplied by school officials. Id. at 582. The school stated that the purpose of holding these civic prayers at graduations was to commemorate the solemnity of the event and satisfy parents and students who consider that due respect and acknowledgment for divine guidance... ought to be expressed at an event as important in life as a graduation. Id. at However, the nonsectarian nature of the prayer did not render the state-led religious practice acceptable under the Establishment Clause in the eyes of this Court. Id. at 586. The school environment in which this prayer occurred was pivotal to the finding that there had been a violation of the Establishment Clause. Id. at 588. There are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Id. at 592; see also Schempp, 374 U.S. 203; Edwards v. Page 8 of 43

20 Aguillard, 482 U.S. 578 (1987); Bd. of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (1990). This was distinguished from the invocation upheld as Constitutional in Marsh v. Chambers, which involved adult legislators rather than school children. 463 U.S. 783, 792 (1983); see also Town of Greece v. Galloway, 134 S. Ct (2013) (upholding a town s monthly meeting sectarian prayer practice acceptable when and because it freely and openly rotated amongst different sects). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. Lee, 505 U.S. at 592. In particular, this Court emphasized the amount of public and peer pressure a student may face when they choose to object to a religious exercise. Id. This pressure, though subtle and indirect, can be as real as any overt compulsion.... Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. Id. at 593. If this dilemma of participation or protest is compelling in the context of a middle school graduation, the dilemma faced by the Walsh children is several orders of magnitude more compelling. In Lee, despite there being no official school policy requiring attendance, this Court denied the state s claim that the school was not in effect coercing its students to witness a prayer at a high school graduation in violation of the Establishment Clause. Id. at [T]o say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. Id. at 596. The situation the Walsh children face is far more extreme and the consequences more dire. First, this Court and the state of Pacifica cannot realistically expect any and all families with personal beliefs against vaccination to home school or attend a private school versus a Page 9 of 43

21 public school in order to maintain their way of life. Either option presents a great burden financially, and in particular, the expectation that a family simply home-school their children would require an incredible sacrifice of time and, potentially, career. In Lee, it was too high a burden to expect an objecting student to separate themselves from a graduation ceremony, even temporarily. Id. at 596. The compulsion to attend a high school football game is assumedly even less, yet this Court explained in Santa Fe Independent School District v. Doe that the argument that students do not have to attend minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. 530 U.S. at 311. It only follows that it is far too high a burden to require children to opt not to attend their school at all in order to avoid converting to a religion. The burden for a family to completely alter their lives and finances to accommodate the legislature s desire that they identify as religious is even higher. After all, [i]t is a tenant of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. Id. Given the great burden it would place on the Walshes to find another schooling arrangement, their choice is significantly narrowed under 124.1, and in a way that not only denigrates their personal beliefs but coerces them towards religion. Essentially, the actions and statements of the Pacifica legislature have told them their beliefs are false (R. at 2-3 (referring to the beliefs of Pacificans with personal-belief exemptions as false science )), and in order to attend their school they must either submit to an invasive injection or profess faith in a religion which objects to vaccinations in order to legitimize their beliefs in the eyes of the state. These forces induce the Walshes to conform to religion in the same way forbidden by this Court in Lee. In fact, there is already evidence of the phenomenon of parents opting to profess adherence in a Page 10 of 43

22 religion in order to circumvent the lack of secular exemption. R (citing Dorit Rubenstein 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 (2014). As the Twelfth Circuit astutely observed, [t]he Establishment Clause prohibits the government from putting its citizens in this predicament. R. at 15. B. SECTION IS A GOVERNMENT ENDORSEMENT OF RELIGION VIOLATIVE OF THE ESTABLISHMENT CLAUSE. In addition to being heavily coercive, is an inappropriate government endorsement of religion. The endorsement test was established by Justice O Connor in an attempt to [clarify] the Lemon test as an analytical device. Lynch, 465 U.S. at 689. As stated in her concurrence in Lynch v. Donnelly, the endorsement test marries the purpose and effect prongs of the Lemon test in order to determine whether the government action endorses religion. Id. at 690. In other words, the test examines both whether the government intended to convey endorsement as well as whether the government s action actually conveyed endorsement. Id. An affirmative answer to either question should render the challenged practice invalid. Id. [T]he mere existence of some secular purpose does not excuse government action which otherwise endorses religion. Id. at 691. Endorsement reaches beyond mere accommodation. [W]e do not deny that the Constitution allows the State to accommodate religious needs by alleviating special burdens. Bd. of Ed. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 706 (1994). An accommodation crosses the line into endorsement, however, when it imposes a substantial burden on non beneficiaries, or provides a benefit to religious believers without providing a corresponding benefit to a large number of nonreligious groups or individuals. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 337 Page 11 of 43

23 (1987). Rather than creating a mere accommodation, the legislators of Pacifica created a benefit solely reserved for the religious which does not carry any corresponding benefit to, in particular, the Walshes, and those who share their beliefs. One popular example of a religious accommodation which has been upheld under the Establishment Clause is the payment and provision of Chaplains for Congressional invocations. See Marsh, 463 U.S. 783; Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995). Cutter v. Wilkinson provides another example. In Cutter, the Ohio Department of Rehabilitation and Correction challenged the Religious Land Use and Institutionalized Persons Act ( RLUIPA ) as an impermissible governmental advancement of religion. 544 U.S. 709, (2005). RLUIPA provided that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless there s a compelling interest to impose such a burden that is enacted by the least restrictive means. Id. at 715. This Court denied the challenge under the Establishment Clause because the government was simply providing an accommodation so people would be free to continue their religious practices. Id. at 714. However, it was important in the reasoning that RLUIPA did not single out any particular religion for preferential treatment, and conferred no privileged status on any particular religious sect. Id. at 724. In addition, RLUIPA was only enforced against institutionalized persons who have much greater governmental restriction over their daily lives than most. Id. at 720. Cutter cannot control here because, first of all, does single out religious adherents for preferential treatment, and second, because does not simply alleviate the governmentcreated burden of vaccination, but instead confers a benefit to those who are religious over those Page 12 of 43

24 who are not. The Twelfth Circuit appropriately identified the effort in Cutter to balance the accommodations under RLUIPA against the burdens on those inapplicable for the accommodations, as well as the unique context of centers of incarceration. R. at 13. That attempt at neutrality is precisely what is missing in the present case, and the attitude of government toward religion must be one of neutrality. Schempp, 374 U.S. at 306. The statements of Pacifica s public servants during deliberation over the removal of personal-belief exemptions strongly indicate a preference for religion over nonreligion. During discussions over whether the religious exemption would be maintained, Senator James Wright explicitly stated, No one in government can tell a citizen that his or her understanding of God s commands is in error. R. at 3. Meanwhile, Representative Bill Thomas denigrated the nonreligious beliefs of parents such as the Walshes when he explained that [m]any Pacificans who currently have personal-belief exemptions are putting their children in harm s way based upon their belief in false science. The beliefs of those who sought the personal exemption could very well be just as strong as the beliefs of adherents to religions with doctrinal opposition to vaccinations, but gives no consideration to them simply on the basis that they are nonreligious. While the official purpose of is to encourage the overall vaccination rate, granting a religious or personal-belief exemption has the same end result: fewer vaccinated children. The state has made no claim nor showing that eliminating the personal-belief exemption will significantly decrease the number of unvaccinated children. Thus, just as the Twelfth Circuit explained, the Pacifica legislature must have specifically retained the religious exemption for no apparent reason other than to favor religion. R. at 13. Any narrowing of the gap between the vaccinated and unvaccinated is narrowed along the lines of those who have a Page 13 of 43

25 religious belief the legislature considers important, and those who have a false belief. This result cannot stand under Establishment Clause jurisprudence. However, the States may not employ religious means to reach a secular goal unless secular means are wholly unavailing. Schempp, 374 U.S. at 294. What is crucial is that a government practice not have the effect of communicating a message of government endorsement.... in reality or public perception. Lynch, 465 U.S. at 692 (O CONNOR, J., concurring). There is government endorsement of religion here both in reality and in public perception via the Walshes. While the Pacifica legislature considered broader vaccination rates as a benefit to 124.1, it is clear that the Walshes do not agree. However, as Justice O Connor acknowledged, If the audience is large, as it always is when government speaks by word or deed, some portion of the audience will inevitably receive a message determined by the objective content of the statement. Lynch, 465 U.S. at 621 (O CONNOR, J., concurring). Public perception of the government s meaning is equally important to the government s intended meaning. Id. The Twelfth Circuit correctly acknowledged that in this case the real benefit to the Walshes would be preventing vaccination. R. at 13. Simply because the legislature considers vaccination itself a benefit does not mean their belief stands as fact for all citizens. In objective terms, the message the Walshes received from the elimination of the personal belief exemption is that their beliefs about vaccination are not as legitimate as they might be if induced by a belief in a higher power. Certainly, to the Walshes, this is a government endorsement of religion. This improper attempt at a religious accommodation is closely mirrored in Texas Monthly, Inc. v. Bullock. At issue in Texas Monthly was a Texas statute exempting periodicals publishing solely religious materials from sales and use taxes. 489 U.S. 1, 5 (1989). The statute was struck down as a violation of the Establishment Clause. Id. at 14. In its reasoning, this Court Page 14 of 43

26 explained that in other cases where similar exemptions were upheld as Constitutional, the benefits derived by religious organizations flowed to a large number of nonreligious groups as well. Indeed, were those benefits confined to religious organizations, they could not have appeared than as state sponsorship of religion. Id. at 10; see Walz v. Tax Comm n of New York City, 397 U.S. 664 (1970) (sustaining a property tax exemption where the benefit flowed to a wide array of nonprofit organizations as well as religious organizations, rather than singling out religious organizations); see also School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985) (striking down a state-funded educational program that nearly exclusively benefited religious schools). It was immaterial in Texas Monthly that the benefit to religious groups was indirect, as it is in the present case. Id. at 10. Thus, to the extent that the exemption from vaccination is limited to religious adherents, it cannot pass muster under the Establishment Clause. The benefit religious Pacificans receive from must not be accorded only to those who object based on their belief in a higher power, else the government be accurately viewed as promoting religion among objectors. C. SECTION VIOLATES THE ESTABLISHMENT CLAUSE UNDER THE LEMON ANALYSIS. If this Court decides that the Lemon test is the most appropriate examination for illustrating that violates the Establishment Clause, then the constitutionality of the statute depends on whether it satisfies three parts of the long-prescribed Lemon test. Lemon, 403 U.S. 602; Edwards, 482 U.S. at 583 ( State action violates the Establishment Clause if it fails to satisfy any of these prongs ); see also Amos, 483 U.S. at 339 (holding that laws affording a uniform benefit to all religions should be constitutionally analyzed under the Lemon test). The Lemon test requires that a statute must: (1) have a secular legislative purpose; (2) have a primary effect that neither advances nor inhibits religion, and; (3) avoid excessive government Page 15 of 43

27 entanglement with religion in order to be constitutionally compliant with the Establishment Clause. Lemon, 403 U.S. at ; cf. Zelman, 536 U.S. at 648 ( A central tool in our analysis of cases in this area, [Establishment Clause jurisprudence], has been the Lemon test. ). While Establishment Clause jurisprudence and the Lemon test are criticized as nebulous, erratic, with no principled basis, the three-pronged Lemon test remains one analytical tool for Establishment Clause claims. Utah Highway Patrol Association v. American Atheists, Inc., 132 S. Ct. 12, 13, 14, 21 (2011) (THOMAS, J., dissent from denial of certiorari); Lemon, 403 U.S. at ; Doe v. Elmbrook School District, 687 F.3d 840, 849 (7th Cir. 2012). Between the endorsement test, coercion test, and Lemon test, there is conflicting guidance from this Court. Id. at 14. The confusion afforded to the Establishment Clause analysis is, as Justice Scalia said in Lamb s Chapel v. Center Moriches Union Free School District, our Establishment Clause jurisprudence... [like] some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried. 508 U.S. 384, 398 (1993) (SCALIA, J., concurring in judgment) (stating the Establishment Clause is like a geometry of crooked lines and wavering shapes, a ghoul in a late night horror movie that can t be slain even though no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature s heart. ). However, the Lemon test has never had a stake through its heart and is a still viable analytical tool for Establishment Clause issues. See Lynch, 465 U.S. at 679. One benefit is that the Lemon analysis is less stringent than the strict scrutiny review normally applied to facially discriminatory laws. Larson v. Valente, 456 U.S. 228, 244 (1982); see also Epperson v. Arkansas, 393 U.S. 97 (1968). As such, the Petitioners may prefer the Lemon test because this less stringent analysis benefits the Petitioners assertions. See McCreary, Page 16 of 43

28 545 U.S. at 859 n.9 (noting that the Supreme Court has only found government action motivated by an illegitimate purpose four times since Lemon). Unfortunately for the Petitioners, even under the Lemon analysis, violates the Establishment Clause. 1. Section does not have an entirely secular religious purpose. Under the first prong of the Lemon test, a statute must be invalidated if it lacks a secular legislative purpose. 403 U.S. at When the state acts with the ostensible and predominant purpose of advancing religion, then the state violates the Establishment Clause. McCreary, 545 U.S. at 860 (citing Amos, 483 U.S. at 335). When a statute shows the purpose to favor religion, the state sends a message to nonreligious people that they are outsiders, not full members of the political community, and that religious people are instead the favored members. Santa Fe, 530 U.S. at 314 (quoting Lynch, 465 U.S. at 688). The inquiry into a state action is not limited to what direct aid was given to an organization. See Santa Fe, 530 U.S. at 308 (holding that the determination of governmental purpose hinges on whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement ). Veiled motives can hide behind a neutral statute; however, is does not attempt to hide its discriminatory purpose. Even though a textual analysis of a statute may appear to yield a neutral purpose, there is always concern that government officials that drafted the law disguised their religious intention. However, this Court has stated that the text, legislative history, and implementation of the statute are sufficient to suss out governmental purpose. McCreary, 545 U.S. at 863 (holding that a secret motive stirs up no strife unless it is paired with the text, legislative history, and implementation that leads to discrimination); see also McGowan v. Maryland, 366 U.S. 420, 450 (1961) (holding that Sunday closing statutes were constitutional because there was no legislative history for the desire of all Americans to honor Christ). This government intention can also be Page 17 of 43

29 illustrated through obvious religious promotion or through less obvious legislative means. See Stone v. Graham, 449 U.S. 39, 41 (1980) (invalidating a law requiring the posting of the Ten Commandments in each public school classroom because it had no secular legislative purpose); see also Epperson, 393 U.S. at 106 (barring a flat ban of teaching evolution in public schools because the law pandered to the principles and prohibitions of certain religious sects). Yet, the requirement for a secular purpose does not mean that the law s purpose must be completely unrelated and separated from religion. Amos, 483 U.S. 327, 335 (1987); Edwards, 482 U.S. at 585. As this Court held in Edwards v. Aguillard, the purpose prong of the Lemon test assesses whether the government s purpose is to endorse or disapprove of religion. Id. In Edwards, this Court held that a Louisiana law forbidding the teaching of evolution, without including competing creationist theories, was facially invalid and violated the Establishment Clause. Id. at This Court stated that there was no previous Louisiana law that prohibited the teaching of evolution. Id. at Thus, there was no secular purpose that was not fully served by existing Louisiana state law before the enactment of this new, facially invalid law. Id. Additionally, this Court found legislative history contained statements by the sponsor demonstrating intent to narrow the science curriculum because of his religious beliefs. Id. at 587, 592. This Court held that such statements and legislative history undermined the government s assertion that the law was intended to have a secular legislative purpose. Id. at Similarly, in Santa Fe, this Court invalidated a school district s policy of student-led, student-initiated prayer at football games. 530 U.S. at 317. This Court held that the prayer policy violated the Establishment Clause and was facially invalid. Id. The School District asserted that because the school football prayer was read by an elected student representative and enacted with Page 18 of 43