No November Term, GERALD BLACK, et. al., JAMES WALSH and CINDY WALSH,

No. 15-1977 IN THE November Term, 2015 GERALD BLACK, et. al., v. Petitioners, JAMES WALSH and CINDY WALSH, Respondents. On Writ of Certiorari to the Court of Appeals for the Twelfth Circuit BRIEF FOR RESPONDENTS Attorneys for Respondent Team 2416

QUESTIONS PRESENTED (1) Whether Pacifica Health & Safety Code 124.1 violates the Establishment Clause of the First Amendment. (2) Whether the Due Process Clause of the Fourteenth Amendment is violated when a public school forces select children to watch a public-health documentary it reasonably knows will contravene the wishes of parents. ii

TABLE OF CONTENTS QUESTIONS PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... v OPINION BELOW... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 5 ARGUMENT... 8 I. STANDARD OF REVIEW.... 8 II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT PACIFICA S HEALTH & SAFETY CODE 124.1 VIOLATES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT.... 9 A. Pacifica s Amended Health Code Fails the Court s Establishment Clause Test in Lemon.... 10 1. Pacifica s Amended Health Code Fails the Effects Prong of the Lemon Test.... 11 2. Pacifica s Amended Health Code Fails the Entanglement Prong of the Lemon test.... 15 B. Pacifica s Amended Health Code is an Unconstitutional State Endorsement of Religion.... 19 C. Pacifica s Amended Health Code is Not a Permissible State Accommodation of Religion... 21 D. Pacifica s Amended Health Code Impermissibly Coerces Nonreligious Objectors to Participate in Religious Exercise.... 25 iii

III. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT THE RESPONDENTS DUE PROCESS RIGHT TO REAR THEIR CHILDREN WAS VIOLATED.... 26 A. The Violation of the Right to the Care, Custody, and Control of the Respondents Children by a Public School Should be Subject to Heightened Scrutiny.... 26 1. Respondents rights as parents in the care, custody, and control of their children is a fundamental liberty interest because it is deeply rooted in our nation s history and is implicit in the concept of ordered liberty.... 27 B. The School District s Violation of Respondents Fundamental Liberty Interests as Parents Must Be Subject to Intermediate Scrutiny.... 31 C. Petitioners Fail the Intermediate Scrutiny Test and Have Violated Respondents Fundamental Right to the Care, Custody, and Control of Their Children by Forcing the Walsh Children to Watch the Vaccination Video.... 34 1. The state interests pursued by the School District in application are not important government interests.... 35 2. The School District s showing of the Vaccination Video is not substantially related to their alleged interest in furthering health awareness.... 38 CONCLUSION... 40 APPENDIX A... A-1 APPENDIX B... B-1 iv

TABLE OF AUTHORITIES U.S. Supreme Court Cases Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994).. 21, 23, 24 Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)... 37 City of Cleburn, Tex. v. Cleburne Living Ctr., 471 U.S. 432 (1985)... 32 Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989)... 15, 19 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)... 22 Cutter v. Wilkinson, 544 U.S. 709 (2005)... 21, 22, 24 Edwards v. Aguillard, 482 U.S. 578 (1987)... 36, 37 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)... 11, 12, 20, 21, 23 Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947)... 9 Gillette v. United States, 401 U.S. 437 (1971)... 17, 18 Ginsberg v. New York, 390 U.S. 629 (1968)... 37 Griswold v. Connecticut, 381 U.S. 479 (1965)... 30 Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987)... 22 Kramer v. Union Free Sch. Dist. 15, 395 U.S. 621 (1969)... 31 Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)... 11, 12, 13, 14 Lee v. Weisman, 505 U.S. 577, 587 (1992)... 25, 36 Lemon v. Kurtzman, 403 U.S. 602 (1971)... 10, 11, 15, 17 Lynch v. Donnelly, 465 U.S. 668 (1984)... 10, 19 Meyer v. Nebraska, 262 U.S. 390 (1923).... 7, 27, 30, 38 Moore v. City of East Cleveland, 431 U.S. 494 (1977)... 28, 32, 33 v

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)... 7, 27, 30, 35, 38 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)... 30 Prince v. Massachusetts, 321 U.S. 158 (1944)... 30 Roe v. Wade, 410 U.S. 113 (1973)... 31 Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995).. 11, 13, 14 Salve Regina College v. Russell, 499 U.S. 225 (1991)... 8 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)... 19, 25 Santosky v. Kramer, 455 U.S. 745 (1982)... 29, 33 Scott v. Harris, 550 U.S. 372 (2007)... 9 Troxel v. Granville, 530 U.S. 57 (2000)... 7, 28, 33 United States v. Carolene Prod. 304 U.S. 144 (1938)... 35 United States v. Seeger, 380 U.S. 163 (1965)... 15, 16, 18 United States v. Virginia, 518 U.S. 515 (1996)... 32, 35 Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970)... 11, 17 Washington v. Glucksberg, 521 U.S. 702 (1997)... 26, 27, 31 Welsh v. United States, 398 U.S. 333 (1970)... 14, 15, 16, 17, 18 Wisconsin v. Yoder, 406 U.S. 205 (1972)... 7, 35, 37, 38 U.S. Court of Appeals Cases Fields v. Palmdale School Dist., 427 F.3d 1197 (9th Cir. 2005)... 39 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)... 36, 39 Constitutional Provisions U.S. Const. amend. XIV... 26... vi

OPINION BELOW The unreported opinion of the United States Court of Appeals for the Twelfth Circuit appears on pages 9-15 of the record. The unreported opinion of the United States District Court of Pacifica appears on pages 1-8 of the record. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The constitutional provisions at issue are the Establishment Clause of the First Amendment, located at Appendix A, and the Due Process Clause of the Fourteenth Amendment, located at Appendix B. STATEMENT OF THE CASE This case involves a dispute over whether a state s change to the Health and Safety Code, which eliminated a personal belief exemption to mandatory immunization of school children, violates the Establishment Clause, and whether a public school s practice of forcing only unimmunized children to view documentaries about vaccines violates the parent s rights protected by the Due Process Clause. West Beverly Elementary School The West Beverly Elementary School is a public primary school in the city of West Beverly Heights, Pacifica. R. at 1. As per state law, West Beverly Elementary School is required to mandate certain immunizations before children are permitted to enroll in the school. R. at 2. Twins Brenda Walsh and Brandon Walsh, aged 10, will enter the fourth grade at the public school in fall of 2015. R. at 1. Their 1

parents, James and Cindy Walsh, (the Respondents ) have long maintained personal beliefs against immunizations. R. at 3. The Vaccination Exemption For years, the State of Pacifica has generally required all children enrolled in school to undergo a series of vaccinations as a condition of attendance. R. at 1. However, under Pacifica s Health & Safety Code 124, the state permitted exemptions for medical reasons, religious reasons, or personal beliefs that are opposed to immunizations. R. at 2. This relatively generous exemption policy meant that burdens for securing an exemption were minimal. R. at 10. After California s recent outbreak of measles, one of the diseases preventable by vaccination, much blame was placed on permissive exemption policies like Pacifica s. R. at 2. Indeed, the American Medical Association warned that states should tighten exemptions in order to prevent further outbreaks, and it recommended that states permit exemptions only for medical reasons. R. at 10. In a reaction to California s measles outbreak, R. at 2, Pacifica s legislature adopted a radically different exemption policy. R. at 10. The new policy, Pacifica s Health & Safety Code 124.1, completely eliminates exemptions for nonreligious people, except those who seek exemption for medical reasons. R. at 10. Religious people, on the other hand, may still receive exemptions under the Code -- but they may do so only if they qualify under the Code s newly-adopted test of religious beliefs. R. at 10. The Code in effect directs officers of the state to question the content of a person s religious beliefs to determine whether those beliefs are 2

genuinely religious under the statute. Pacifica determined that religious people are all those and only those who believe in duties superior to those arising from human relations. R. at 10. The statute expressly excludes those whose beliefs are better described as political, sociological, or philosophical views or merely a personal moral code. R. at 10. The lead sponsor of the amendment to the Code explained why the law excludes nonreligious people from obtaining an exemption: [W]e 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. R. at 3. Believing that the amended statute is unconstitutional under the Establishment Clause, the Walshes brought this action, seeking to prevent the government from implementing the new statute. The Vaccination Video Pacifica requires students to be immunized before enrolling into a public school. R. at 2. After the amendment to the Health and Safety Code, John Smith, the Pacifica Superintendent, allowed school districts in the state to show The Truth About Vaccines (the Vaccination Video ), an alleged educational documentary. R. at 3. The Vaccination Video targets elementary school children and combats what it believes to be misperceptions about vaccines. R. at 3. The video features children of misinformed parents, and shows how the children are able to teach their parents the error of their ways. R. at 3. At the conclusion of the documentary, the 3

Vaccination Video urges children watching to take their newfound knowledge about the benefits of vaccinations and bring it back to their family and friends. R. at 3. Yvonne Teasley, the principle of West Beverly Elementary School, instituted a new health protocol at West Beverly Elementary School, which prohibited unvaccinated children from participating in school trips. R. at 3. While the vaccinated children are participating in off-campus field trips, the segregated children remaining participate in on-campus, indoor activities. R. at 3. Watching the Vaccination Video is one of the indoor activities that Principle Teasley shows to the unvaccinated children during the class s off-campus field trips. R. at 3. In September 2014, while the rest of the classroom visited the local petting zoo, the Walsh children, without prior notice to their parents, were told to watch the documentary. R. at 3. Mr. and Mrs. Walsh have repeatedly used the personal-belief exemption from the original Health and Safety Code. R. at 3. The Walshes have continuously kept their children, Brandon and Brenda, involved in their decision to not vaccinate. R. at 4. After watching the Vaccination Video during a school trip that the Walsh children were not privy to, Brenda and Brandon questioned their parents authority to not vaccinate, and directed a lack of respect to the family. R. at 4. Procedural History Respondents filed a complaint in the United States District Court for the District of Pacifica. R. at 1. Respondents brought two claims. In the first, they alleged that the State of Pacifica s Health and Safety Code violates the 4

Establishment Clause of the First Amendment, and they sought declaratory and injunctive relief to prevent the state from applying the statute on their school-aged children. R. at 1. In the second, Respondents alleged that the West Beverly School District s practice of forcing unimmunized children to view documentary films about vaccination is a violation of substantive Due Process under the Fourteenth Amendment. R. at 1. Parties moved for summary judgment, R. at 1., and on November 22, 2014, the District Court granted Respondents motion on the Due Process claim, and Petitioners motion on the Establishment claim. R. at 6. On July 3, 2015, the Twelfth Circuit reversed the District Court s grant of summary judgment to Petitioners on the Establishment Clause claim, and affirmed the grant of summary judgment to Respondents on the Due Process Clause claim. R. at 9. Petitioners sought review on certiorari, which this court granted on July 20, 2015. R. at 16. This Court limited review to two issues: (1) whether Pacifica Health & Safety Code 124.1 violates the Establishment Clause of the First Amendment; and (2) whether the Due Process Clause of the Fourteenth Amendment is violated when a public school forces select children to watch a public-health documentary it reasonably knows will contravene the wishes of parents. R. at 16. SUMMARY OF ARGUMENT I. Pacifica Health & Safety Code 124.1 is an Unconstitutional Establishment of Religion. This Court has used a number of separate tests to determine whether the government s action constitutes an impermissible establishment of religion under the First Amendment. The Court s test in Lemon v. Kurtzman will invalidate any 5

federal or state action that lacks a secular purpose, advances religion as its primary effect, or excessively entangles government and religion. Pacifica s amended Health & Safety Code clearly violates the second and third parts of this test. The Code has the primary effect of advancing religion, because the benefits it casts on religion are not merely the incidental effects of a general program of secular aims, and because the Code apparently forsakes the interests of those ineligible for an exemption. The Code also excessively entangles government and religion: it adopts as official state policy a content-based religious test, one that requires the government to search the hearts and minds of religious people. This Court has sometimes applied an endorsement test to determine whether the government s action is consistent with the Establishment Clause. Pacifica s Code fails the endorsement test, largely for the same reasons that it advances religion in its primary effect. Pacifica cannot rescue the statute by labeling it a harmless, neutral-minded accommodation for a religious group, because the interests of the policy s beneficiaries are assigned much greater weight than the interests of nonbeneficiaries, who have no choice but to absorb the risks of living with an undervaccinated population. For these reasons, Pacifica s amended exemption policy is an unconstitutional establishment of religion. II. The Vaccination Video Impedes on the Walshes Fundamental Due Process Right to the Care, Custody, and Control of Their Children. The Due Process Clause of the Fourteenth Amendment secures the rights of parents to the care, custody, and control of their children. Troxel v. Granville, 530 6

U.S. 57, 65 (2000). The right to rear and direct the upbringing of children, even in the expansive realm of education, has been a staple in our Due Process jurisprudence since Meyer v. Nebraska, where the Supreme Court held that the Nebraska legislature had materially interfered with the calling of modern language teachers, and with the power of parents to control the education of [their children] when it had prohibited the teaching of foreign languages. 262 U.S. 390, 401 (1923). The fundamental theory of liberty here rests on the notion that the child is not a mere creature of the statute. Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 536 (1925). While there is also no doubt that the state has a right and a responsibility to educate and impose regulations, subject to judicial scrutiny, for the control and duration of the education of children, the state s interest in education is not totally free from a balancing process when it impinges on fundamental rights, such as those specifically protected by [the Constitution] and the traditional interests of parents. Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972). In this case, Respondents maintain a fundamental due process right, as parents, to the care and custody of their children, even in a public school setting. Any violation of this right by the West Beverly School District must, therefore, be subject to heightened judicial scrutiny. By secluding Respondents children and forcing them to watch an opinionated vaccination video, the School District has violated the Respondents rights under the Due Process Clause. Therefore, this Court should affirm the holding of the Twelfth Circuit Court of Appeals and find the 7

School District to be in violation of the Respondents Due Process right to rear their children. ARGUMENT Respondents claim that Pacifica s Health & Safety Code 124.1 is an unconstitutional violation of the Establishment Clause of the First Amendment. Respondents further claim that the School District violated their parental rights under the Due Process Clause of the Fourteenth Amendment by exposing their children to a public-health documentary that it reasonably knew would contravene their wishes. Respondents must prevail on the Establishment Claim, because the amended Health Code effectively sponsors and endorses religion, subordinating the interests of the general population to the interests of a particular religious group. Further, Respondents must prevail on the Due Process claim, because the School District violated the Walshes right to the rear their children by forcing the segregated children to watch a persuasive video on the benefits of vaccination. I. STANDARD OF REVIEW. This Court is reviewing the decision of the United States Court of Appeals for the Twelfth Circuit, which granted summary judgment in favor of the Respondents on the Establishment Clause claim, as well as the Due Process Clause claim. (R. at 9.) The appropriate standard for view for this Court is de novo. Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991). Summary judgment is appropriate only where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The facts must be 8

viewed in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT PACIFICA S HEALTH & SAFETY CODE 124.1 VIOLATES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. The Twelfth Circuit correctly held that Pacifica s Health & Safety Code 124.1 violates the Establishment Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947). Under the longstanding test adopted in Lemon v. Kurtzman, the Establishment Clause absolutely forbids the kinds of state sponsorship of religion at work in Pacifica s amended Code. The Code violates the Lemon test in two ways: first, the Code advances religion as its principal and primary effect; second, the Code sponsors a religious belief test that thoroughly entangles the State of Pacifica in the affairs of religion. If the Court relies instead on an endorsement test to determine the constitutionality of the Code, it will find that the Code unmistakably conveys a message of the state s endorsement of religion. The District Court believed that the law could be saved as a mere accommodation of a religious group, but a closer analysis does not permit that conclusion, because Code operates to advance the interests of one religious group at severe costs to the rest of the population. Finally, the Code amounts to a kind of government coercion -- sincere, nonreligious objectors to vaccinations, such as the Walshes, will have no choice but to feign religious belief to gain the exemption. For these reasons, the Twelfth Circuit s judgment on the Walshes Establishment claim should be affirmed. 9

A. Pacifica s Amended Health Code Fails the Court s Establishment Clause Test in Lemon. Pacifica s amendment to its Health & Safety Code, which eliminates the personal belief exemption, does not survive the constitutional scrutiny of the Court s Establishment Clause test in Lemon v. Kurtzman, because its primary effect is the sure and certain advancement of religion, and because it sponsors a religious belief test that entangles the state and religion. In Lemon, the Court adopted a three-part test to determine whether the government s action is permitted under the Establishment Clause: the act must have a secular purpose; its principal or primary effect must neither advance nor inhibit religion; and it must not create excessive entanglement of government and religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). Pacifica s amendment survives the highly permissive first prong of the Lemon test, because even if the amendment s purpose is primarily the advancement of religion, the amendment satisfies the first prong if any credible secular purpose can be supplied. Lynch v. Donnelly, 465 U.S. 668, 680 (1984) ( The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. ). However, the amendment clearly fails the second and third prongs of the Lemon test, those concerning effects and entanglement. 10

1. Pacifica s Amended Health Code Fails the Effects Prong of the Lemon Test. Pacifica s Health & Safety Code 124.1 confers a significant and exclusive benefit on religious people because of their religious beliefs, and not merely as the incidental or collateral effect of a general program. As such, the law clearly fails the effects prong of the Lemon test. For a legislative act to survive the second prong of the Lemon test, its principal or primary effect must be one that neither advances nor inhibits religion. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). When government action advances religion, its constitutionality under the effects prong turns on whether the advancement is a primary effect or an incidental effect of the action. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995); see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982); Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970). Government action that benefits religious groups is permissible under the second prong of the Lemon test when those benefits are merely the incidental effects of a secular program. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995); see also Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970). In Walz, decided one year before Lemon, the Court sustained a New York state law that exempted certain institutions from property taxation, including houses of religious worship, hospitals, libraries, and playgrounds. The Court held that the benefits to religious groups, though significant, are the permissible incidental effects of the state s general program to lend support to beneficial and 11

stabilizing influences in community life. Walz, 397 U.S. at 673. More recently, in Rosenberger, where a public university provided printing services to student groups, including sectarian student groups, the Court found no Establishment Clause violation, because [a]ny benefit to religion is incidental to the government's provision of secular services for secular purposes on a religion-neutral basis. Rosenberger, 515 U.S. at 843-44 (emphasis added). But government action whose primary effect is to advance religion is impermissible. Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The analysis turns again on the question of whether a reasonable observer could understand the religion-advancing effect as merely the collateral effect of a policy with a religion-neutral objective. See Caldor, 472 U.S. 703; see also Larkin, 459 U.S. 116. When a legislative act confers benefits on an explicitly religious basis, as Pacifica s Health & Safety Code 124.1 does, the Court has considered whether the interests of different groups are weighed equally, cf. Caldor, 472 U.S. 703, and whether a suitable, non-discriminating alternative policy could have affected the same neutral governmental objective, cf. Larkin, 459 U.S. 116. When a legislative act confers benefits to religious groups on an explicitly religious basis, the act unconstitutionally advances religious interests, unless the interests of nonbeneficiaries are weighed equally. Cf. Caldor, 472 U.S. 703. In Caldor, a Connecticut law forbad employers to terminate Sabbath-observing employees who demand not to work on the day they designate as their Sabbath. Id. 12

at 707. The law permitted only those who designate a Sabbath to claim the entitlement, thus shifting the burdens of the accommodation to employers and nonobserving employees. Id. Invalidating the law, the Court held that the statute s unyielding weighting in favor of Sabbath observers over all other interests went beyond having an incidental or remote effect of advancing religion. Caldor, 472 U.S. at 710. Additionally, an act of this kind unconstitutionally advances religious interests when a suitable, non-discriminating alternative policy could have affected the same neutral governmental objective, cf. Larkin, 459 U.S. 116. In Larkin, a Massachusetts law permitted churches to veto the liquor licenses of any establishments within a certain distance of their church buildings. Id. at 117. The Court found that the law impermissibly advanced religion in its primary effect. Id. at 126. Though the legislature had a valid secular purpose in protecting spiritual, cultural, and education centers from the hurly-burly associated with liquor outlets, that purpose could be readily accomplished by other means. Id. at 124. Here the conclusion cannot be avoided that the primary effect of Pacifica s Health & Safety Code 124.1 is the advancement of religion, because simply put, the law is written with only one group s interests in mind -- the religious group that objects to vaccination. Unlike the government s policies in Walz and Rosenberger, where general programs incidentally conferred benefits on religious groups, Pacifica s amended Code targets the religious objector qua religious, despite the plain and obvious truth that many nonreligious objectors are in every relevant way 13

similarly-situated to the religious objectors. As Justice Harlan wrote in the context of selective conscientious objection, [c]ommon experience teaches that among religious individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations. Welsh v. United States, 398 U.S. 333, 358-59 (1970) (Harlan, J., concurring in the judgment). Pacifica addressed concerns over its permissive exemption policy not by adopting a sensible, even-handed amendment, but by categorically dismissing all objections that are not related to duties superior to those arising from human relations. R. at 8. Like the state legislature in Larkin, Pacifica s legislature could have adopted an alternative, non-discriminating policy to affect the same neutral government objective. Such a policy would have aimed both to reduce the number of children receiving exemptions and to accommodate those with sincere, deeplyheld, significant and personal beliefs against vaccination, who are gravely worried about consequences to their children. A neutral policy of that kind would have resembled the government s policies in Walz and Rosenberger, because the benefits conferred on religious objectors would have been incidental to the program of exempting similarly-situated people with objections to vaccination. Pacifica s Health Code resembles the unconstitutional statute at issue in Caldor, because the amended Health Code utterly forsakes the interests of nonbeneficiaries. Not only are nonreligious objectors cast aside, but also nonbeneficiaries generally absorb the risks of an undervaccinated population. This 14

is the intolerable result of a legislature that values the freedom of the religious over the freedom of the rest of the population. Because its primary effect is the advancement of religious interests, we must conclude that Pacifica s Health & Safety Code 124.1 clearly fails the effects prong of the Lemon test. 2. Pacifica s Amended Health Code Fails the Entanglement Prong of the Lemon test. Pacifica s amendment, which newly adopts a narrow definition of religious belief, is an unlawful entanglement of government and religion, because it entangles government in essentially theological or religious debates, and invites agents of the government to scrutinize the content of religious beliefs as opposed to the function of those beliefs in the lives of adherents. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief.... Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 594 (1989). To determine whether a belief qualifies as religious, the proper inquiry is never a subjective analysis of the content of religious beliefs, but rather an objective determination of the role or function of the beliefs in the lives of their adherents. Cf. Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). When a policy requires the government to inspect the content of beliefs in order to draw a line between those that count as secular and those that count as religious, that policy fails the entanglement prong of the Lemon test. Cf. Lemon v. Kurtzman, 403 U.S. 602 (1971). 15

Any serious attempt by the government to adopt a useful, content-based definition of religion is bound to run afoul of the Establishment Clause, because such a definition will likely be underinclusive. Welsh, 398 U.S. 333; Seeger, 380 U.S. 163. In Seeger, the Court considered the question of whether Mr. Daniel Seeger s belief against participating in war qualified as a religious belief under the meaning of the Universal Military Training and Service Act. The Act defined religious belief as an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code. Seeger, 380 U.S. at 165. Mr. Seeger described his own belief as a devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed. Welsh, 398 U.S. at 338. In its attempt to interpret the meaning of the Service Act, the Seeger Court examined a variety of religious traditions, concluding that the diversity and broad spectrum of bona fide religious beliefs reveal the difficulties inherent in placing too narrow a construction on the provisions of [the Act]. Seeger, 380 U.S. at 183. Rather than declare the Service Act unconstitutional under the First Amendment, the Seeger Court applied the rule of constitutional avoidance, interpreting the language of the Service Act broadly to include any belief that is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Seeger, 380 U.S. at 166. The inquiry into religious belief became one about function. The 16

question was not what Mr. Seeger believed, but whether the beliefs function as a religion in [Seeger s] life. Welsh, 398 U.S. at 340 (emphasis added). The functional definition, as opposed to a content-based definition, avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others. Seeger, 380 U.S. at 176. The functional definition also permitted the Court to conclude that Mr. Seeger s belief qualified him for an exemption under the statute. Even if Congress could draw the lines between religious and secular, the government s very scrutiny and sorting of personal beliefs is itself violative of the entanglement prong under Lemon. Indeed, in Lemon itself, the Court invalidated a state practice of lending government support to secular functions of parochial schools, in part because the government s program required the government to examine the school s records to determine how much of the total expenditures is attributable to secular education and how much to religious activity. Lemon, 403 U.S. at 620. The Court applied the entanglement prong, finding that the state inspection and evaluation of the religious content... is fraught with the sort of entanglement that the Constitution forbids. Id. The same rule applies when government attempts to examine hearts and minds: government may not attempt by a content-based test to determine the character of a persons beliefs and affiliations without entang[ling] [itself] in difficult classifications of what is or is not religious. Gillette v. United States, 401 U.S. 437, 457 (1971) (quoting Walz v. Tax Commission, 397 U.S. 664, 698-99 (1970) (Harlan, J.)). 17

Pacifica s amended Health Code is a content-based test of religion. The Code permits exemptions only for those whose beliefs qualify as sincere religious belief. R. at 8. The statute defines a religious belief as 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. R. at 8. Pacifica s definition of religious belief is deeply flawed. First, as in Seeger, where the government attempted a content-based definition of religion, Pacifica s definition is vastly underinclusive. Indeed some of the religious beliefs examined by the Court in Seeger, including Mr. Seeger s own belief, would not qualify under the narrow content-based test in Pacifica s Health Code, for Mr. Seeger s belief bore no relationship whatsoever to duties superior to those that arise from human relations. See Welsh, 398 U.S. at 338. Second, Pacifica s amendment invites -- indeed, it requires -- agents of the state to commence the kind of scrutiny and sorting of personal beliefs that the Court expressly condemned in Lemon and Gillette. It is no stretch to imagine administrators at West Beverly Elementary School calling hearings to question the beliefs of parents and their children in Pacifica. Such a result is intolerable under the Establishment Clause, for it plainly violates the entanglement prong of the Lemon test. 18

B. Pacifica s Amended Health Code is an Unconstitutional State Endorsement of Religion. Pacifica s amendment to its Health & Safety Code also confers symbolic benefits on religion generally, because it has the impermissible effect of conveying a message of the state s endorsement of religion. The Court often applies an endorsement test to determine whether the government s action is consistent with the Establishment Clause. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984) (O Connor, J., concurring). The prohibition on endorsement means this: that with regard to religion, nonreligion, or other religious status, the government may not convey a message either that a status is favored or preferred, Cnty. of Allegheny, 492 U.S. at 593, or that some people, because of their religious status, are insiders, favored members of the political community, Lynch, 465 U.S. at 688 (O Connor, J., concurring). The Court considers the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement, Cnty. of Allegheny, 492 U.S. at 630, as well as the history, Santa Fe, 530 U.S. at 308. In a concurring opinion, Justice O Connor applied the endorsement test in Estate of Thornton v. Caldor, Inc., concluding that Connecticut s statute, which single[d] out Sabbath observers for special and... absolute protection without according similar accommodation to ethical and religious beliefs and practices of other private employees, indeed conveyed to the objective observer an endorsement 19

of a religious position. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711 (1985) (O Connor, J., concurring). Here the government of Pacifica confers an impermissible, symbolic benefit on religion generally and on one religious group in particular. Pacifica dropped the exemption for nonreligious reasons but retained the exemption for religious reasons, conveying the message to an objective observer that nonreligious reasons are less worthy of the state s respect. The history of the amendment adds to the concern, because the state deliberately targeted those who claimed a nonreligious objection. R. at 2. Indeed, the amendment s lead sponsor in the Senate strongly implied that freedom of a religious nature is more worthy of government protection than freedom of a nonreligious nature, when he explained that, [W]e 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. R. at 3. The amendment also unmistakably signals that the interests of a religious group, those who have a religious belief opposed to vaccination, are more important than the interests of the rest of the population. The amended Health Code is exactly like statute at issue in Caldor. Pacifica, like Connecticut, weighed the interests of one group over all other interests, Caldor, 472 U.S. at 710, including the public health. Moreover, Pacifica denied to nonreligious objectors any consideration for their relevantly-similar personal beliefs. As in Caldor, one group has been single[d] out... for special and... absolute protection without according similar accommodation to ethical... beliefs and practices of others. Caldor, 472 20

U.S. at 711 (O Connor, J., concurring). There simply is no reasonable interpretation of Pacifica s amendment other than this: that Pacifica favors and prefers religion to nonreligion, an unconstitutional endorsement under the Establishment Clause. C. Pacifica s Amended Health Code is Not a Permissible State Accommodation of Religion Pacifica s amended exemption policy assigns greater importance to the interests of a religious group than to the rest of the population, overburdening those who are not eligible for exemptions. As such, the amendment crosses the line from permissible state accommodation of religion to unconstitutional establishment. The District Court concluded that, even though Pacifica s amendment expressly targets a religious group for benefits, the amendment can be rescued by the Court s longstanding exception for religious accommodations. R. at 4. Indeed the government may grant accommodations to religious groups in order to lift the special burdens that legitimate exercises of state power place on their practice. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 705 (1994). However, the District Court overlooked the constitutional limits of accommodations under the Establishment Clause. When granting a religious accommodation, the government must not categorically weight the interests of the beneficiaries of such accommodations over nonbeneficiaries. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985). An accommodation must be measured so that it does not override other significant interests. Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). An accommodation goes too far when it becomes a kind of fostering of religion. Corp. 21

of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 (1987) (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 145 (1987)). The government may sponsor a religious accommodation only if the accommodation relieves a special burden on a religious group and does so with due regard to other important interests. See Cutter, 544 U.S. 709; see also Amos, 483 U.S. 327. In Cutter, the Court reviewed the RLUIPA, a congressional act that requires prisons to grant some accommodations to the religious practices of prisoners, such as certain appearance mandates of their religions. Cutter, 544 U.S. at 713. Overlooking the exception for religious accommodations, the prison argued that the Act was an impermissible establishment, because it gave greater protection to religious rights than to other constitutionally protected rights. Cutter, 544 U.S. at 718. Rejecting the prison s understanding of Establishment doctrine, the Court reaffirmed the longstanding exception for such accommodations, arguing that the Act permissibly alleviate[d] exceptional government-created burdens on private religious exercise. Id. at 720 (emphasis added). Crucially, however, the Court in Cutter found that the RLUIPA could stand only because it granted accommodations in an appropriately balanced way, with particular sensitivity to other interests, including the security concerns of prisons. Id. at 722. An accommodation becomes a kind of unconstitutional establishment when the government clearly assigns a different weight to the interests of a group because of that group s religious status, or treats the interests and concerns of a group as 22

more worthy of governmental protection. See Kiryas Joel, 512 U.S. 687; see also Caldor, 472 U.S. 703. In Kiryas Joel, the State of New York carved out a school district to accommodate a conservative religious group s worry that some of its children would otherwise suffer fear and trauma... in leaving their own community and being with people whose ways were so different. Kiryas Joel, 512 U.S. at 692. Invalidating the accommodation, the Court held that there was no assurance that the next similarly situated group seeking a school district of its own will receive one, raising the worry that New York s accommodation may prefer one religious to another, or religion to irreligion. Kiryas Joel, 512 U.S. at 703. Likewise in Caldor, where the state of Connecticut required employers to permit Sabbath-observers a Sabbath day of their choosing, the Court held that the state inequitably shifted the burdens of Sabbath-observers to nonbeneficiaries of the policy, impermissibly treating the interests and concerns of the Sabbath-observers above those of the rest of the population. Caldor, 472 U.S. 703. Thus, when the government gives a benefit to a religious group for the purpose of alleviating what would otherwise be an exceptional government-created burden on that group, the government acts within the bounds of the Establishment Clause only if it treats the interests of the group as no more worthy of accommodation than the interests of similarly-situated other groups, regardless of religious status. Here we are led to the inescapable conclusion that Pacifica s amended Health Code is not a permissible accommodation but an unconstitutional establishment of religion, for two reasons: (a) the burdens of Pacifica s mandatory vaccination policy 23

are not special or exceptional burdens of the kind that permit exclusive accommodation; and (b) the amended vaccination policy clearly assigns greater importance to the interests of a religious group than to the public interest or the interests of nonbeneficiaries, overburdening them with the costs of one group s religious practice. Simply put, the religious objectors to vaccination face no more of a burden than the nonreligious objectors. Many nonreligious objectors are similarly positioned in every important way: they deeply and personally object to vaccinations; they fear for the very lives of their children; and as a matter of conscience they cannot permit their children to submit to vaccination. The vaccination policy of Pacifica is decidedly unlike the accommodation in Cutter, where prison policies had placed exceptional burdens that fell uniquely on certain religious prisoners. The amended vaccination policy virtually mirrors the problems that the Court found in Kiryas Joel and Caldor, in that it treats similarly-situated groups differently, suggests a preference for religion over irreligion, and assigns less importance to the interests of nonbeneficiaries, to the point of exposing their children to an undervaccinated population. Indeed, the Court of Appeals rightly directs our attention to the American Medical Association s finding that the government should only grant exemptions... for medical reasons. R. at 10. Thus Pacifica s accommodation to religious objectors is in fact an establishment: it is not a corrective measure to alleviate an exceptional government-created burden, but a 24

facially-discriminatory law meant to benefit one religious group at a severe cost to the rest of the population. D. Pacifica s Amended Health Code Impermissibly Coerces Nonreligious Objectors to Participate in Religious Exercise. Because Pacifica s Health & Safety Code 124.1 will undoubtedly force the most sincere, nonreligious objectors to feign religion in order to gain the vaccine exemption, the Code is an impermissible kind of coercion under the Establishment Clause. The government may not coerce anyone to support or participate in religion or its exercise. Lee v. Weisman, 505 U.S. 577, 587 (1992). This Court has defined coercion broadly to include even state-sponsored subtle coercive pressures. Weisman, 505 U.S. at 588; see Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (finding that, despite the formally optional nature of participation, a public school s sanctioning of religious speech before sporting events amounted to a kind of coercion, because students would feel social pressure to participate). Pacifica s amended Code applies a very direct kind of pressure to those who, for nonreligious reasons, deeply and personally object to vaccinations, fearing for the very lives of their children. Far greater than the pressure to participate in a prayer before a football game, as in Santa Fe, Pacifica s policy leaves some no choice but to claim falsely an adherence to the favored religious position of the religious objector. This amounts to an impermissible establishment of religion. 25

III. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT THE RESPONDENTS DUE PROCESS RIGHT TO REAR THEIR CHILDREN WAS VIOLATED. The Twelfth Circuit affirmed the District Court s decision and held that the School District violated the Walshes right to rear their children, a fundamental right provided to them by the Due Process of the Fourteenth Amendment. The majority of the Court found that, by secluding them from the rest of the classroom, the School District improperly communicated its desired message to the students. While the Twelfth Circuit correctly identified that heightened scrutiny was appropriate level for fundamental rights violations, case law suggests that the more fitting test in this case is intermediate scrutiny. The School District fails to meet the constitutional requirements of the intermediate scrutiny test because the school action is not substantially related to an important government interest. A. The Violation of the Right to the Care, Custody, and Control of the Respondents Children by a Public School Should be Subject to Heightened Scrutiny. The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. U.S. Const. amend. XIV, 1. This provision, under judicial expansion, has come to encompass several substantive-due-process rights afforded to individuals. The Due Process Clause affords the most stringent protection to those rights that are so fundamental that they are objectively, deeply rooted in our nation s history and tradition, and implicit in the concept of ordered liberty. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). 26

Heightened scrutiny, specifically, intermediate scrutiny, is the appropriate test to be applied in this case because the violation of parental care over their children is the violation of a fundamental right that is deeply rooted in our nation s history and our notion of ordered liberty. Therefore, to remain fully consistent with Fourteenth Amendment Due Process Clause jurisprudence, as well as to protect the purposes of the Due Process Clause, this Court must hold that the School District s act of showing the Vaccination Video should be subject to heightened scrutiny. 1. Respondents rights as parents in the care, custody, and control of their children is a fundamental liberty interest because it is deeply rooted in our nation s history and is implicit in the concept of ordered liberty. A fundamental liberty interest subjecting the state to heightened scrutiny is one that is found to be a continuous staple in our history and jurisprudence. Washington v. Glucksberg, 521 U.S. 702, 721 (noting that our Nation s history, legal traditions, and practices thus provide the crucial guideposts for responsible decision-making that direct and restrain the Due Process Clause ). Parents interest in the care of their children is one of the oldest of the liberty interests recognized by this Court. Beginning with the Meyer-Pierce cases, the Court, in a span of two years, recognized that there is a liberty interest protected by the Fourteenth Amendment in parents being able to raise and control their children. Id. at 762. In Meyer v. Nebraska, the Court struck down the Nebraska law forbidding foreign language studies until after the eighth-grade, holding that the state legislature attempted to unjustly interfere with academic opportunities and the 27

power of parents to control the education of their own. 262 U.S. 390, 401 (1923). Similarly, the Pierce Court found the Compulsory Education Act, which forced parents to send their children to public school, violated the Due Process Clause and conflicted with the right of parents to choose schools where their children will receive appropriate [ ] training. Pierce v. Soc y of Sisters, 268 U.S. 510, 572. The Meyer-Pierce decisions in 1923 and 1925, respectively, gave rise to the notion that the formerly private relationship between parent and child was a protected substantive due process interest that the state could not arbitrarily infringe on. This Court has also repeatedly found that the nuclear family relationship enjoys enhanced protection in its substantive liberties. Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977). In Moore v. City of East Cleveland, this Court found that the Constitution protected the sanctity of the family because the institution of the family is deeply rooted in this Nation s history and tradition; it is through this family that we inculcate and pass down many of our most cherished values, moral and cultural. Id. at 504. Most recently, this Court crystallized the substantive due process right to raise children in Troxel v. Granville. In Troxel, the Court recognized that parents maintain a fundamental right to make decisions concerning the care, custody, and control of their children, and that this right is afforded heightened protection against government interference. 530 U.S. 57, 65 (2000). Although the statute at issue in Troxel involved the right to petition a superior court for visitation rights whenever visitation was in the best interest of the child, Justice O Connor, in her 28