Supreme Court of the United States

No. 15-1977 IN THE Supreme Court of the United States FEBRUARY TERM, 2015 GERALD BLACK, et al., Petitioners, v. JAMES WALSH and CINDY WALSH, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF FOR PETITIONER Dated: September 26, 2015 Counsel for Petitioner Team # 2406 Color: Light Blue i

TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iv QUESTION PRESENTED...1 STANDARD OF REVIEW...1 STATEMENT OF THE CASE...1 SUMMARY OF ARGUMENT...3 ARGUMENT...5 A. PACIFICA HEALTH & SAFETY CODE 124.1 DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT BECAUSE THE STATUTE S RELIGIOUS ACCOMODATION NEITHER VIOLATES THE COERCION TEST WHICH IS THE APPROPRIATE TEST UNDER CUTTER AND TOWN OF GREECE OR THE LEMON OR ENDORSEMENT TESTS...5 1. Both this Court s Marked Shift in Establishment Clause Jurisprudence and the Imprecision of the Lemon and Endorsement Tests Dictate that the Coercion Test is the Proper Test for Establishment Clause Claims....7 i. The Lemon and endorsement tests do not adequately address Establishment Clause concerns, and therefore do not merit continued use......7 ii. Cutter and Town of Greece establish the coercion standard as the proper standard of review in Establishment Clause cases...11 2. Pacifica Health & Safety Code 124.1 Does Not Violate the Coercion Test Because it Neither Directs Benefits Towards Religion in a Way That Would Tend to Establish a State Church, nor Coerces People to Participate in Religion Against Their Will....14 3. Even if This Court Were to Apply Either the Lemon Test or the Endorsement Test, Pacifica Health & Safety Code 124.1 Still Meets Constitutional Muster Under the Establishment Clause...17 B. THE STATE OF PACIFCA DID NOT VIOLATE THE WALSHES PARENTAL RIGHTS BECAUSE THE FOURTEENTH AMENDMENT DOES NOT ALLOW PARENTS TO DICTATE TO SCHOOLS HOW TO TEACH STUDENTS...21 ii

1. Rational Basis Review Applies to the School District s Decision Because Showing the Vaccine Documentary did not Infringe in the Walshes Fundamental Right to Direct the Upbringing of their Children...21 i. The origins of parental rights....22 ii. iii. iv. The circuits are in agreement that parents have no right to interfere with a school s curricular choices....23 Showing the documentary did not constitute indoctrination because the school did not seek to inculcate any religious viewpoint...32 Showing the Vaccine Video is Rationally Related to a Legitimate Government Interest...33 2. Showing the Vaccine Documentary also Survives Strict Scrutiny...35 CONCLUSION..37 APPENDIX.38 iii

United States Supreme Court Cases TABLE OF AUTHORITIES Agostini v. Felton, 521 U.S. 203 (1997)...17, 32 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S 753 (1995)...10 Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989)...passim Cutter v. Wilkinson, 544 U.S. 709 (2005)...passim F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993)...34 Goss v. Lopez, 419 U.S. 565 (1975)...27 Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987)...5, 15 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)...34, 36 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)...8 Lee v. Weisman, 505 U.S. 577 (1992)...6, 7, 14 Lemon v. Kurtzman, 403 U.S. 602 (1971)...passim Locke v. Davey, 540 U.S. 712 (2004)...5, 15 Lynch v. Donnelly, 465 U.S. 668 (1984)...20 McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)...9 Meyer v. Nebraska, 262 U.S. 390 (1923)...passim Pierce v. Society of Sisters, 268 U.S. 510 (1925)...passim Prince v. Massachusetts, 321 U.S. 158 (1944)...22, 24 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)...9 Tilton v. Richardson, 403 U.S. 672 (1971)...7 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)...passim iv

Troxel v. Granville, 530 U.S. 57 (2000)...passim Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011)...10 Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970)...5 Ward v. Rock Against Racism, 491 U.S. 781 (1989)...36 Wisconsin v. Yoder, 406 U.S. 205 (1972)...31 United States Court of Appeals Bailey v. Va. High Sch. League, Inc., 488 Fed. App x 714 (4th Cir. 2012)...30 Blau v. Fort Thomas Public School Dist., 401 F.3d 381 (6th Cir. 2005)...27 Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995)...24, 25, 27 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005)...28, 30 Fields v. Palmdale School Dist., 427 F.3d 1197 (9th Cir. 2005)...25, 28, 31 Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000)...29, 30 Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003)...25, 26, 33 Littlefield v. Forney, 268 F.3d 275 (5th Cir. 2001)...26 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)...32, 33 Stevenson v. Blytheville Sch. Dist. #5, 2015 WL 5090672 (8th Cir. 2015)...30 Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998)...26 U.S. v. Bello, 194 F.3d 18 (1st Cir. 1999)...16 U.S. v. Butler, 622 F.2d 258 (6th Cir. 1980)...16 U.S. v. Jocic, 207 F.3d 889 (7th Cir. 2000)...16 U.S. v. Kelley, 546 F.2d 42 (5th Cir. 1977)...16 v

U.S. v. King, 879 F.2d 137 (4th Cir. 1989)...16 United States District Court Kleid v. Bd. of Ed. of Fulton, Kentucky Indep. Sch. Dist., 406 F. Supp. 902 (W.D. Ky. 1976)...18, 19 Constitutional Provisions U.S. Const. amend. I...passim U.S. Const. amend. XIV...22 Statutes Pacifica Health & Safety Code 124.1 (2015)...passim Pacifica Health & Safety Code 124 (2012)...15 Other Authorities Jesse H. Choper, The Endorsement Test: Its Status and Desirability, 18 J.L. & Pol. 499 (2002)...9 James M. Lewis, A Controversial Twist of Lemon: The Endorsement Test As the Establishment Clause Standard, 65 Notre Dame L. Rev. 671 (1990)...8 Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 U.C. Davis L. Rev. 1621 (2006)...10 Philip N. Yannella, The Death-Knell for the Lemon Test? Assessing the Constitutionality of the Charitable Choice Act of 2001, 11 Temp. Pol. & Civ. Rts. L. Rev. 181 (2001)...9 Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795 (1993)...10 vi

I. QUESTIONS PRESENTED A. Under Cutter and Town of Greece, does Pacifica Health & Safety Code 124.1, which provides a religious exemption from Pacifica s vaccination regime and which neither coerces nor endorses religious practice, violate the Establishment Clause of the First Amendment? B. Does a public school violate a parent s right under Troxel v. Granville to direct their child s upbringing when the school shows the child an educational documentary conflicting with the parent s personal beliefs? II. STANDARD OF REVIEW The questions presented to the Court are purely questions of law. The standard of review is therefore de novo. See, e.g. Pierce v. Underwood, 487 U.S. 552, 558 (1988) (stating that questions of law are reviewed de novo). III. STATEMENT OF THE CASE I. Statement of the Facts The State of Pacifica has taken several preventative measures in response to a 2014 measles outbreak in California and the resulting nation-wide concern over the spread of infectious disease. First, the Pacifica legislature amended its mandatory vaccination law to eliminate the personal belief exemption, and thereby reduce the number of exceptions to mandatory vaccination granted to public school children. R. at 1. Second, the Pacifica Superintendent of Public Education made an educational documentary about the benefits of vaccination labelled The Truth About Vaccines available to all school districts. In September of 2014, the West Beverley Principal showed the documentary to children who had not already been vaccinated, and who were therefore unable to participate in school field-trips. R. at 3. At least four students who then qualified for personal-belief exemptions were vaccinated after 1

watching the video. R. at 3. The Respondents children were among those who watched the documentary on a day when their vaccinated classmates were on a field trip. R. at 3. The Respondents, as a result of internet research, believe that the alleged benefits of vaccines are exaggerated by large pharmaceutical manufacturers to dupe the public into buying their products, and that vaccines are responsible for autism. R. at 3-4. Because the Respondents do not personally believe in vaccination, and because they could no long avoid vaccination under the personal-belief exemption, they challenged both the amended statute and the school s decision to show The Truth About Vaccines. R. at 4. II. Procedural History The Respondents filed suit in Federal District Court, claiming violations of the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth, and seeking declaratory and injunctive relief against the State authorities. R. at 1. The District Court granted summary judgment to the Petitioners on the Establishment Clause claim, and granted summary judgment for the Respondents on their Due Process Claim. R. at 5, 6. Both parties appealed. On appeal, the Twelfth Circuit reversed the District Court on the Free Exercise claim, and affirmed on the Due Process claim. R. at 13. The State petitioned this Court for a Writ of Certiorari, which this Court granted on July 20, 2015. R at 16. 2

IV. SUMMARY OF THE ARGUMENT Pacifica Health & Safety Code 124.1 does not violate the Establishment Clause. The Establishment Clause of the First Amendment allows for accommodations of religion, even accommodations that are not mandated by the Free Exercise clause, as long as those accommodations do not amount to religious coercion or state proselytization. And while the proper test for determining Establishment Clause violations has been the subject of much debate over the last half-century, current jurisprudence mandates that where the state s action is not directly religious as is the case with Pacifica s Health & Safety Code 124.1 (which concerns the state s student vaccination plan) the proper test is the coercion test. The Twelfth Circuit, which held that the 124.1 violated the Establishment Clause, erred on two fronts: First, the Twelfth Circuit erred when it evaluated the statute under the Lemon and endorsement tests two tests which this Court s jurisprudence demonstrates have earned retirement. Second, the Twelfth Circuit erred in its application of the coercion test by ignoring the Respondent s reasonable alternatives to vaccination. Because Town of Greece abrogates County of Allegheny in part, and because Cutter and Town of Greece together establish constitutionality of religious accommodations that do not have a coercive effect on a non-believing third party, the coercion standard is the appropriate standard in Establishment Clause cases a standard which 124.1 does not offend. Moreover, even under the endorsement or Lemon tests, Respondents claim against 124.1 is unavailing because the statute 3

neither creates a reasonable perception of religious endorsement nor meets the Lemon trifecta of religious purpose, religious effect, and unnecessary government entanglement in religious affairs. Accordingly, 124.1 passes constitutional muster. Showing The Truth About Vaccines did not violate Respondents Due Process rights. The Walshes argue that the State of Pacifica violated their Fourteenth Amendment parental rights when the Principal of West Beverley Elementary School showed their children a documentary on the benefits of vaccination. This argument must fail because the fundamental right of parents to direct the care, custody, and control of their children does not give parents the power to decide what a school teaches, or how it teaches it. Although this Court has not addressed the extent of the fundamental parental right, the Federal Circuits are in agreement that public schools need not acquiesce to parental preferences when it comes to educating students voluntarily attending those schools. Accordingly, a school s decision as to its method of instruction is subject only to rational basis review. The school s actions survive this minimal level of scrutiny because the school s actions were rationally related to the state s legitimate interests in the health and education of public school students. Alternatively, the school s decision to show the documentary is constitutional even under strict scrutiny because that decision served a compelling government interest, and was narrowly tailored to achieving that interest. 4

V. ARGUMENT A. PACIFICA HEALTH & SAFETY CODE 124.1 DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT BECAUSE THE STATUTE S RELIGIOUS ACCOMODATION NEITHER VIOLATES THE COERCION TEST WHICH IS THE APPROPRIATE TEST UNDER CUTTER AND TOWN OF GREECE OR THE LEMON OR ENDORSEMENT TESTS. The Establishment Clause exists in constant tension with the First Amendment s Free Exercise Clause, which requires that the government accommodate religious beliefs within reason. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-145 (1987). While these two clauses are in many ways two sides of the same coin, prohibited establishment of religion does not always end where the free exercise [of religion] starts. U.S. Const. amend. I. This play in the joints between the clauses creates a gap where the Free Exercise Clause does not require religious accommodation and the Establishment Clause does not prohibit it. Locke v. Davey, 540 U.S. 712 (2004) (quoting Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669 (1970)). In that gap, the government is allowed to accommodate religious beliefs even though the Free Exercise Clause does not demand accommodation all without offending the Establishment Clause so long as that accommodation does not amount to subtle religious coercion or state proselytization. Locke, 540 U.S. 712, 718-19 (2004); Town of Greece v. Galloway, 134 S. Ct. 1811, 1813 (2014). And while the proper test for determining Establishment Clause violations has been the subject of much debate over the last half-century, current jurisprudence mandates that where, 5

as here, the state s action is not directly religious (e.g., legislative prayer) the court must apply the so-called coercion test. Lee v. Weisman, 505 U.S. 577, 587 (1992). Pacifica Health & Safety Code 124.1 (2012), cannot be legitimately said to coerce religious participation even when viewed by persons who find vaccination repugnant. The Respondents two such persons advance two arguments in support of their claim that 124.1 violates the Establishment Clause. First, they argue that County of Allegheny affirms the endorsement test in Establishment Clause cases, and therefore, the coercion standard is not the appropriate standard for constitutional violations. R. at 4. Second, they argue that 124.1 does not meet constitutional muster under the coercion test, the lemon test, or the endorsement test. R. at 12. Because Town of Greece abrogates County of Allegheny in part, and because Cutter and Town of Greece together establish constitutionality of religious accommodations that do not have a coercive effect on a non-believing third party, the coercion standard is the appropriate standard in Establishment Clause cases a standard which 124.1 does not offend. Moreover, even under the endorsement or Lemon tests, Respondents claim against 124.1 is unavailing because the statute neither creates a reasonable perception of religious endorsement nor meets the Lemon trifecta of religious purpose, religious effect, and unnecessary government entanglement in religious affairs. Accordingly, 124.1 passes constitutional muster and must stand. 6

1. Both this Court s Marked Shift in Establishment Clause Jurisprudence and the Imprecision of the Lemon and Endorsement Tests Dictate that the Coercion Test is the Proper Test for Establishment Clause Claims. The last five decades have marked a dramatic shift in this Court s Establishment Clause jurisprudence. However, because the Lemon and endorsement tests this Court s early forays in Establishment Clause rulemaking have experienced wide criticism due to concerns about their approach and effectiveness, and because this Court s more recent decisions including Lee v. Weisman, 505 U.S. 577, 587 (1992), Cutter v. Wilkinson, 544 U.S. 709, 725 (2005), and Town of Greece v. Galloway, 134 S. Ct. 1811, 1813 (2014) propound and reinforce the coercion test, the coercion test now stands alone as the proper test for Establishment Clause claims. iii. The Lemon and endorsement tests do not adequately address Establishment Clause concerns, and therefore do not merit continued use. Establishment Clause questions are famously difficult. See Tilton v. Richardson, 403 U.S. 672, 678 (1971) ( [C]andor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication ). In order to effectively determine which governmental actions respect[] an establishment of religion the judiciary must determine whether the governmental actions direct benefits towards religion in a way that would tend to establish a state church or coerce religious participation against a person s will. U.S. Const. amend I. While the Lemon and endorsement tests both represent critical steps in the evolution of this Court s Establishment Clause jurisprudence, today their relevance and applicability is limited. 7

In 1971, in Lemon v. Kurtzman, 403 U.S. 602, (1971), this Court formulated its first test for determining if governmental actions violated Establishment Clause and the so-called Lemon test was born. This test required that a court (1) determine whether the law or government action in question has a bona fide secular purpose; (2) determine whether the state action has the primary effect of advancing or inhibiting religion; and (3) consider whether the action excessively entangles religion and government. Id. at 612. The Lemon test marked a shift in Establishment Clause jurisprudence and for the first time created a consistent and formulaic approach to Establishment Clause questions. James M. Lewis, A Controversial Twist of Lemon: The Endorsement Test As the Establishment Clause Standard, 65 Notre Dame L. Rev. 671, 675 (1990). However, the test was not without its shortcomings. Justice Scalia, in his concurrence in Lamb s Chapel, famously likened Lemon 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... frightening little children and school attorneys. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 397-98 (1993) (Scalia, J., concurring). Moreover, Justice Scalia noted that [o]ver the years... no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the [Lemon test s] heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. Id. at 398. In addition to those behind the bench, a myriad of legal scholars have criticized the test for among other things its difficulty in reconciling the secular purpose prong to the seeming antipathy between the Establishment and Free Exercise Clauses; conceptual 8

flaws in the application of the entanglement prong; and the potential for generating inconsistent decisions. See, e.g., Jesse H. Choper, The Endorsement Test: Its Status and Desirability, 18 J.L. & Pol. 499, 503 (2002); Philip N. Yannella, The Death-Knell for the Lemon Test? Assessing the Constitutionality of the Charitable Choice Act of 2001, 11 Temp. Pol. & Civ. Rts. L. Rev. 181 (2001). In the face of these concerns, the Lemon test has been slowly phased out of this Court s jurisprudence. And while not formally overturned, the test has only been employed only once in the last fifteen years and then in the setting of student-initiated prayer before a football game See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); see also McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005) (declining to overturn Lemon). At the very least, the Lemon test is inappropriate here because Respondent s Establishment Clause claim stems from statutory religious accommodation, not overt religious action in the governmental sphere. If Lemon has continuing viability, Santa Fe indicates that it is in the sphere of overtly religious government action, such as school-sanctioned prayer. Here, the Lemon test s determination of secular purpose could easily be misinterpreted as at the Twelfth Circuit below to ignore legitimate interests in perpetuating religious freedom. The coercion test, which looks more holistically to the effect of a government action, better delineates the play in the joints between the Free Expression Clause and Establishment Clauses. Locke, 540 U.S. at 718. 9

Similarly, the endorsement test is inappropriate here. That test, which Justice O Conner suggested in 1984 in response to concerns about Lemon, operates under the intuition that the government violates the Establishment Clause when the purpose (or reasonable effect) of a governmental action is to endorse or disfavor religious activity. Lynch v. Donnelly, 465 U.S. 668, 687-94 (1984) (O Connor, J., concurring). However, this test also has been met with criticism for its shortcomings particularly that it applies no real articulable standard. See Capitol Square v. Pinette, 515 U.S. 753, 768, n.3 (1995) (plurality opinion of SCALIA, J.) (stating that the endorsement test supplies no standard whatsoever ); Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12, 21 (2011) ( Indeed, five sitting Justices have questioned or decried the... endorsement test's continued use. ); County of Allegheny, 492 U.S. at 668 (Kennedy, J., concurring in part and dissenting in part) (describing the test as flawed in its fundamentals and unworkable in practice ); see also Cynthia V. Ward, Coercion and Choice Under the Establishment Clause, 39 U.C. Davis L. Rev. 1621, 1626 (2006); Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 801 (1993). As a result, the endorsement test has been primarily used in situations where the government is engaged in expressive activities, such as religious signs on government property, graduation prayers, or religion in the curriculum. In the case of non-overtly religious actions such as religious exemptions it likely would condemn a host of traditional practices that recognize the role religion plays in our society. Town of Greece v. Galloway, 134 S. Ct. 1811, 1821 (2014). 10

Here, even if this court determined that the endorsement test had continuing viability, it would be inappropriate to apply it here because 124.1 authorizes no expressly religious activities. Respondent s Establishment Clause claim is premised on an implicit and subtle argument of religious endorsement hardly the kind of claim that the endorsement test is best situated to handle. R. at 12. Accordingly, even if this Court ignores the concerns about the endorsement test s viability, it would not be appropriate to apply it here. iv. Cutter and Town of Greece establish the coercion standard as the proper standard of review in Establishment Clause cases. This Court s recent jurisprudence further illustrates the evolution of Establishment Clause jurisprudence away from the Lemon and endorsement tests and towards the coercion test. In Cutter, this Court unanimously upheld the Religious Land Use and Institutionalized Persons Act ( RLUIPA ) against an Establishment Clause challenge brought by state prison officials. Cutter v. Wilkinson, 544 U.S. 709, 725 (2005). The prison officials alleged that 3 of the RLUIPA, which provides that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest, and does so by the least restrictive means, violated the Establishment Clause because it strayed further than traditional Free Exercise protections. Id. at 712. This Court applied the coercion test, and held that: [ 3 of the RLUIPA] does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the 11

provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion. Cutter v. Wilkinson, 544 U.S. 709, 732 (2005). Similarly, in Town of Greece v. Galloway, 134 S. Ct. 1811, 1813 (2014), this Court upheld the practice of sectarian prayer in monthly board meeting in the Greece, New York, against an Establishment Clause challenge. The respondents, citizens who attended the meetings, alleged that the town violated the Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. Id. at 1817. The respondents claimed that prayers must be nonsectarian, and that [a] prayer [would be] fitting for the public sphere... only if it contains the most general, nonsectarian reference to God. Id. This Court again applied the coercion test, and, after a fact-sensitive inquiry, concluded that through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, [the Town of Greece did not compel] its citizens to engage in a religious observance. Id. at 1825. Rather, the deep history and tradition of legislative prayer, coupled with the determination that the principal audience of the board s prayers were the lawmakers not the public, this Court held that the board s practice of sectarian prayer did not tacitly and coercively establish religion. Id. at 1826. In so holding, this Court abrogated the dictum from Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 601 (1989), and stated that: Four dissenting Justices disputed that endorsement could be the proper test [in County of Allegheny], as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, 12

among them legislative prayer and the forthrightly religious Thanksgiving proclamations issued by nearly every President since Washington. Town of Greece, 134 S. Ct. at 1811 (internal citations omitted). Here, the District Court of Pacifica correctly understood that that Cutter, in conjunction with Town of Greece, supports the constitutionality of religious accommodations that do not themselves have any coercive effect on a non-believing third party. R. at 5. The Twelfth Circuit, in overturning the district court, erred when it stated that Town of Greece did nothing more than apply a previous legislative prayer case to a new legislative prayer scenario. R. at 12. Among other important distinctives, Town of Greece for the first time gives the weight of majority to endorsement test, and abrogates a portion of the County of Allegheny holding founded upon it. Town of Greece, 134 S. Ct. at 1811-12. Together with Cutter, Town of Greece provides strong support for the conclusion that this Court has mandated a coercion standard in Establishment Clause jurisprudence. Accordingly, this Court s Establishment Clause jurisprudence, coupled with the substantial concerns about the Lemon and endorsement tests, establish that the coercion test is the proper test in Establishment Clause challenges. 2. Pacifica Health & Safety Code 124.1 Does Not Violate the Coercion Test, Because it Neither Directs Benefits Towards Religion in a Way That Would Tend to Establish a State Church nor Coerces People to Participate in Religion Against Their Will. The coercion test establishes that a 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, 13

505 U.S. 577, 587 (1992) (quoting Lynch, 465 U.S. 678 at 673). If a government action directs benefits towards religion in a way that meets either of those two critera, it represents an impermissible establishment of religion. County of Allegheny, 492 U.S. at 659-60 (Kennedy, J., dissenting). 124.1 does not offend this test because, while the statute arguably directs some benefit towards all religion, that benefit is not overbroad and certainly does not tend to establish a state church. Pacifica Health & Safety Code 124.1 (2012). Moreover, while any religious accommodation might entice someone to adopt religious beliefs or lie about such beliefs, the presence of ready alternatives to public schooling demonstrates that this 124.1 does not amount to coercion. First, 124.1 does not directs benefits towards religion in a way that would tend to establish a state church. Justice Kennedy, who first espoused the coercion test in his dissent in County of Allegheny, stated that: [I]t would be difficult indeed to establish a religion without some measure of more or less subtle coercion, be it in the form of taxation to supply the substantial benefits that would sustain a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing. It is no surprise that without exception we have invalidated actions that further the interests of religion through the coercive power of government. Forbidden involvements include compelling or coercing participation or attendance at a religious activity, requiring religious oaths to obtain government office or benefits, or delegating government power to religious groups. County of Allegheny, 492 U.S. at 659-60 (Kennedy, J., dissenting) (internal citations omitted). Here, 124.1 compels no participation in religious activity, mandates no religious oaths, and delegates no power to religious groups. The statute merely offers 14

a religious accommodation for those with any sincere religious belief[s] whose teachings are opposed to immunizations. Pacifica Health & Safety Code 124 (2012). Respondents allege that 124.1 is inherently coercive because it provides a benefit to those with sincere religious beliefs a benefit they deeply desire. R. at 12. Moreover, the Twelfth Circuit alleges that this subtle coercion would cause those who oppose vaccinations for religious reasons to either adopt religious beliefs or lie and say they hold religious beliefs... they do not. Id. It is true that 124.1 provides some benefit to religion. In fact, it is axiomatic that any accommodation, religious or otherwise, provides some benefit to those extended the accommodation. But in the face of this axiom, this Court has repeatedly affirmed the constitutionality of religious accommodation even those in the joints between the Establishment Clause and the Free Exercise Clause. Locke v. Davey, 540 U.S. 712, 718 (2004); see Cutter v. Wilkinson, 544 U.S. 709, 713 (2005); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-145 (1987). The benefit that 124.1 provides applies to all religions equally, and quite simply does not tend to establish a state church. Second, 124.1 is not coercive because there are ready alternatives available to Pacifica s immunization regimen. The defense of coercion, in criminal law, requires the absence of reasonable alternatives. 1 If Respondents truly find vaccination repugnant, they can easily join the homeschooling movement or pursue other alternative forms of education unaffected by 124.1. The Twelfth Circuit dismisses 1 See U.S. v. Bello, 194 F.3d 18 (1st Cir. 1999); U.S. v. King, 879 F.2d 137 (4th Cir. 1989); U.S. v. Kelley, 546 F.2d 42 (5th Cir. 1977); U.S. v. Butler, 622 F.2d 258 (6th Cir. 1980); U.S. v. Jocic, 207 F.3d 889 (7th Cir. 2000). 15

these alternatives, and mistakenly concludes that because 124.1 eliminates 124 s non-religious exemption, that the statute gives subtle coercion for those who oppose vaccinations... to either adopt religious beliefs or lie and say they hold religious beliefs that, in fact, they do not. R. at 10-13. If no meaningful alternatives (like homeschooling) existed, then the Twelfth Circuit would be correct. In that case, parents would be forced into a Hobson s choice between child vaccination (which they consider repugnant), the end of their child s education (which is unconscionable), and lying to invoke the religious exemption. However, that is not the case here. As a result, the Twelfth Circuit s argument amounts more to concerns about inequality than coercion. While the State is sympathetic to this argument, this Court s Establishment Clause jurisprudence simply does not equate unequal with unconstitutional. Accordingly, 124.1 does not coerce religious participation or belief because it does not direct benefits towards religion in a way that would tend to establish a state church, nor does it coerces people into participate in religion against their will. 3. Even if This Court Were to Apply Either the Lemon Test or the Endorsement Test, Pacifica Health & Safety Code 124.1 Still Meets Constitutional Muster Under the Establishment Clause. Even if this Court were to apply either the Lemon or endorsement tests, 124.1 would still meet constitutional muster. Under the Lemon test first established in Lemon v. Kurtzman, 403 U.S. 602 (1971) and later refined in Agostini v. Felton, 521 U.S. 203 (1997) a government regulation must (1) determine whether the law or government action in question has 16

a bona fide secular purpose; (2) determine whether the state action has the primary effect of advancing or inhibiting religion; and (3) consider whether the action excessively entangles religion and government. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). In determining whether a government action has a primary effect of advancing religion, a court must weigh whether the program results in governmental indoctrination of religion; whether it defines its participants by reference to religion; and whether it creates an excessive entanglement between government and religion. Agostini v. Felton, 521 U.S. 203, 219-21 (1997). Here, because 124.1 has the secular purpose of reducing unimmunized schoolchildren, it does not have the primary effect of indoctrination or religious persecution, and has a very limited vetting process for religious exemptions, the statute meets the Lemon test. First, 124.1 satisfies the first Lemon prong because it has a secular primary purpose: to ensure the health and safety of schoolchildren by requiring that each parent or legal guardian... have his or her child immunized unless exempted. Pacifica Health & Safety Code 124.1 (2012). There are two exemptions to the statute one for medical necessity, and the other for those with sincere religious beliefs against immunization and while these exceptions do allow some unimmunized children into the schoolyard, they are designed to reign in the number of unimmunized children in Pacifica s schools. R. at 2 (quoting Pac. Legis. Rec. 14/6783) ( Many Pacificans who currently have personal-belief exemptions are putting their children in harm s way based upon their belief in false science. ). Respondents take issue with 124.1 s provision of a religious exemption in the face 17

of the State s goal to reduce unimmunized children in the schoolyard, but fail to consider that the purpose of the statute, in toto, is still secular. Moreover, the religious exception was not designed to perpetuate religious adherence, but rather religious freedom, another legitimate governmental interest. Id. at 3 (quoting Pac. Legis. Rec. 14/6935). Accordingly, 124.1 has a secular primary purpose, and meets the first Lemon prong. Second, 124.1 has neither the primary effect of advancing or inhibiting religion. In Kleid v. Board of Education, a Federal District Court upheld Kentucky s school vaccination statute which, like here, provided medical and religious exemptions but not a personal belief exemption against an Establishment Clause challenge. Kleid v. Bd. of Ed. of Fulton, Kentucky Indep. Sch. Dist., 406 F. Supp. 902 (W.D. Ky. 1976). The court applied the Lemon test, 2 and, with respect to the primary effect prong, the court stated that: There can be little doubt that the primary effect of immunization program enacted by the Kentucky legislature is to improve and protect the health of Kentucky citizens. The fact that the General Assembly of Kentucky decided to exempt certain children from its immunization program if the child's parents objected to the immunization requirement because of religious beliefs is, at best, only an incidental and remote benefit to any religious group. Id. at 906. Here, like Kleid, 124.1 does not allow public prayer, mandate religious contributions, or place religious symbols to be in public buildings. Viewed as a whole, 124.1 s immunization requirements have little effect on religious practice or faith. True, the religious exception allows for those with sincere religious beliefs to be 2 In 1973, neither the coercion nor endorsement tests had been articulated by this Court. 18

exempted from the state s immunization regimen, but that effect advances religious freedom, not religion itself. Accordingly, 124.1 does not have the primary effect of advancing or inhibiting religion. Finally, 124.1 does not foster excessive entanglement with religion. In Kleid, with respect to this prong, the court stated: In this case only the state contract involved in the immunization program is a simple review of the child's immunization certificate or, if the child's parents object to the immunization requirement, a review of the written objection. This minimum state contract is directly opposite the prophylactic (state) contacts' with religion the Court found to be intolerable in Meek and Lemon. Kleid, 406 F. Supp. at 906. Like the statute in Klied, 124.1 does not change religious practice or suggest religious belief. It merely recognizes that some religions may have sincere beliefs that make vaccination morally repugnant to them. Rather than mandate a Spanish Inquisition for these believers, 124.1 merely requires that they submit a statement of exemption to the school. There is little, if any, danger of religious entanglement in this process. Accordingly, 124.1 passes Establishment Clause muster under the Lemon test. Next, 124.1 also passes scrutiny under the endorsement test. See Lynch v. Donnelly, 465 U.S. 668 (1984). Under the endorsement test, a government action is unconstitutional if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. Id. at 681; County of Allegheny, 492 U.S. at 600. The Twelfth Circuit argues that 124.1 endorses religion because it singles out religious believers for favored protection for no apparent reason other than to 19

favor religion. R. at 10. The Twelfth Circuit errs in two ways: First, 124.1 does not single out religion. In fact, there are two categories of exemptions in the statute: medical necessity and sincere religious beliefs. If the statute truly meant to give only religious benefits, the first exemption would not be necessary. Second, the Twelfth Circuit errs in its application of endorsement test s reasonable person standard. It is true that 124.1 confers the benefit of exemption on those with religious anti-vaccine beliefs and not those with non-religious anti-vaccine beliefs. However, unlike prominently displayed religious symbols or legislative prayer, a reasonable person would not perceive 124.1 s religious accommodation in to its vaccination scheme as Pacifica s endorsement of religion. Such a person might view the statue as a recognition of the value of sincere religious beliefs, something the First Amendment itself does, but not an endorsement of any religion itself. Accordingly, because 124.1 meets constitutional muster under the endorsement test. B. THE STATE OF PACIFCA DID NOT VIOLATE THE WALSHES PARENTAL RIGHTS BECAUSE THE FOURTEENTH AMENDMENT DOES NOT ALLOW PARENTS TO DICTATE TO SCHOOLS HOW TO TEACH STUDENTS. The Twelfth Circuit applied strict scrutiny to find unconstitutional the West Beverley School District s ( the District ) decision to show a vaccine documentary to the Walshes and others children. R. at 13. The court held that showing the documentary infringed on the Walshes fundamental parental rights under Troxel v. Granville, 530 U.S. 57 (2000), and that the school s actions were not narrowly tailored to achieve its interest in teaching children about vaccines. Walsh v. Black, F.3d (12th Cir. 2015). It is undisputed that parents have a fundamental right to direct the upbringing of their children. But that right does not afford parents who have 20

voluntarily surrendered control of their children s education to the State the power to decide what the State may teach, or how the State may teach it. The Twelfth Circuit erred in applying strict scrutiny to the District s decision because the parents rights were not violated. 1. Rational Basis Review Applies to the School District s Decision Because Showing the Vaccine Documentary did not Infringe in the Walshes Fundamental Right to Direct the Upbringing of their Children. Petitioners do not disagree that if the Walshes have a fundamental right to dictate what the District may teach their children, strict scrutiny would apply to the District s showing of the vaccine video over the Walshes protest. Instead, petitioners argue that the Walshes have no such fundamental right, and that rational basis review therefore applies. i. The origins of parental rights. The interest of parents in the care, custody, and control of their children is a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. 3 Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court s recognition and exposition of that interest in Troxel emanates from Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), and has been recognized in the Court s jurisprudence in the century following those seminal decisions. See, e.g. Prince v. Massachusetts, 321 U.S. 158 (1944) (recognizing the interest, and its limitations, in the context of child labor laws); Troxel, 530 U.S. 3 U.S. CONST. amend. XIV, 1 ( All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which 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; nor deny to any person within its jurisdiction the equal protection of the laws. ). 21

57 (establishing the fundamental nature of the interest, and invoking it to protect the right of parents to identify the best interests of their children). In Meyer, the Court struck down a Nebraska law prohibiting anyone from teaching any language other than English in any private, parochial, denominational, or public school to students who had not reached eighth grade. 262 U.S. at 397. The Court identified the right of parents to control the upbringing of their children as falling within the liberty protected by the Fourteenth Amendment, and held that the challenged statute interfered with that right without justification. Id. at 399-400. In Pierce, the Court struck down a similarly unconstitutional statute that required children to attend public school from the age of eight to sixteen. 268 U.S. at 530. Not questioning the right of the State to compel school attendance generally, the Court relied on Meyer to hold that the statute which functionally prohibited attendance at any non-public school unreasonably interfer[ed] with the liberty of parents and guardians to direct the upbringing and education of children under their control. Id. at 534-35. In a powerful declaration of the State s limited jurisdiction over children, the Court stated that, The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children.... The child is not the mere creature of the state; those who nurture and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id. at 535. Together, Meyer and Pierce evince the Court s high respect for the importance and autonomy of parental decision-making. But parental rights like all 22

rights have their limits, and the parents in this case have passed beyond the constitutional bourn in claiming a right to control the District s decision making. ii. The circuits are in agreement that parents have no right to interfere with a school s curricular choices. Although Meyer and Pierce unquestionably stand for the proposition that the State cannot dictate to parents how to educate their children, the Court s early expressions of parental rights were made in the context of statutes restricting parents decisions concerning their children s educations, whether or not parents chose to send their children to public school. Such statutes necessarily interfere with a parent s fundamental rights because they restrict parental decision-making at the outset, even prior to a parent s deciding what curriculum or which school meets the parent s desires and serves their child s best interests. Here, however, the State s actions, as expressed in the District s vaccine curriculum, are only in dispute because the complaining parents voluntarily chose to send their children to public school. That distinction is determinative because it puts the Walshes in the position of contesting the school s curricular discretion a losing position under a long and unified line of lower-court precedent delineating the limits of the Meyer-Pierce right. The Supreme Court has noted the limitations of the parental right in Prince v. Massachusetts. There, the Court stated that neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth s well being, the state as parens patriae may restrict the parent s control by requiring school attendance, regulating or prohibiting the child s labor, and in many other ways. 321 U.S. 158, 166. And while Prince dealt only with the limitations of Meyer and Pierce 23

in the context of child labor, the circuits have applied a unified approach in the public school context that flows naturally from Prince s limiting principles. A leading case on the limitations of the Meyer-Pierce right in the public school context comes from the First Circuit in Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), cert denied 516 U.S. 1159 (1996). 4 In Brown, the parent plaintiffs argued that the school violated their right to direct the upbringing of their children and educate them in accord with their own views by conducting without notice to the parents a ninety-minute, sexually explicit presentation on AIDS awareness. Id. at 529. In holding that the parents failed to state a valid claim, the First Circuit stated that the right established in Meyer and Pierce does not encompass[] a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. Id. at 533 (emphasis added). The court reasoned that, If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school s choice of subject matter. Id. at 534. The court accordingly concluded that the Constitution do[es] not encompass a broad-based right to restrict the flow of information in the public schools. Id. The Ninth Circuit spoke even more strongly than the First in Fields v. Palmdale School Dist., 427 F.3d 1197 (9th Cir. 2005). In Fields, the state action at 4 Although Brown came prior to the Supreme Court s explicit recognition of a fundamental parental right in Troxel, the First Circuit s holding hinged not on the fundamental nature of the parental right, but on its extent a question which Troxel did not address. 24

issue was a survey administered by the school which asked elementary-aged children the same demographic at issue in this case about sexual thoughts and feelings. Id. at 1200. The school district had not notified parents as to the sexual content in the survey. Id. Agreeing with the First Circuit s analysis in Brown, and reasoning that the Constitution do[es] not afford parents a right to compel public schools to follow their own idiosyncratic views as to what information the schools may dispense, Id. at 1206, the court concluded that the Meyer-Pierce right does not extend beyond the threshold of the school door. Id. at 1207. The Second Circuit, too, has held that parents have no right to bend public schools to their will by dictating the curriculum. In Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003), the court denied a parent s challenge to the school s mandatory health curriculum, which included discussion of sex and drugs (though there was no mention of rock-and-roll). Id. at 137. The parent in Leebaert made repeated objections to the curriculum in a months-long correspondence with his son s middle school principal leading up to the health education classes. The court relied on Brown, supra, and Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998), infra, to hold that Meyer, Pierce, and their progeny do not begin to suggest the existence of a fundamental right of every parent to tell a public school what his or her child will and will not be taught.... [R]ecognition of such a fundamental right requiring a public school to establish that a course of instruction objected to by a parent was narrowly tailored to meet a compelling state interest before the school could employ it with respect to the parent's child would make it difficult or impossible for any public school authority to administer school curricula responsive to the overall educational needs of the community and its children. 25