In The Supreme Court of the United States

No. 15-1977 In The Supreme Court of the United States October Term, 2015 GERALD BLACK, et al., Petitioner, v. JAMES WALSH & CINDY WALSH, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF FOR RESPONDENTS Team 2423 Attorneys for Respondent

QUESTIONS PRESENTED I. Does Pacifica Health & Safety Code 124.1 violate the Establishment Clause of the First Amendment? II. Is the Due Process Clause of the Fourteenth Amendment violated when a public school exposes children to a public-health documentary it reasonably knows will contravene the wishes of parents? i

PARTIES TO THE PROCEEDING Respondents James and Cindy Walsh were Plaintiffs in the District Court of Pacifica and Appellants/Cross-Appellees in the United States Court of Appeals for the Twelfth Circuit. Petitioners, Gerald Black, John Smith, and Yvonne Teasley were Defendants in the District Court of Pacifica and Appellees/Cross-Appellants in the United States Court of Appeals for the Twelfth Circuit. ii

TABLE OF CONTENTS QUESTIONS PRESENTED... i PARTIES TO THE PROCEEDING... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... vi OPINIONS BELOW... 1 STATEMENT OF JURISDICTION... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT AND AUTHORITIES... 8 I. THE TWELFTH CIRCUIT PROPERLY HELD SECTION 124.1 VIOLATES THE ESTABLISHMENT CLAUSE... 8 A. The Case at Bar is Distinguishable from Cutter... 11 B. As Applied, Section 124.1 Fails the Lemon Test... 14 1. Section 124.1 Does Not Have a Secular Purpose... 15 2. Section 124.1 Unconstitutionally Favors and Advances Religion... 18 a. Section 124.1 endorses religion... 18 b. Section 124.1 provides a direct benefit to religious adherents... 19 c. Pacifica does not benefit from Section 124.1... 21 iii

3. Section 124.1 Excessively Entangles the State With Religion... 22 C. Government May Not Coerce its Citizens to Participate in Religious Exercise... 24 1. Section 124.1 Encourages Parents to Take Up Religion... 25 2. Section 124.1 Has a Coercive Effect... 26 3. The Present Case is Distinguishable from Town of Greece... 29 II. THE WEST BEVERLY SCHOOL DISTRICT VIOLATED THE WALSHES DUE PROCESS RIGHTS... 31 A. The Supreme Court Consistently Recognizes a Parent s Liberty Interest in the Care, Custody, and Control of Their Children... 31 B. A Parent s Right to Control Their Children s Care, Custody, and Control is a Fundamental Right... 34 C. The School Engaged in Indoctrination, Not Education... 37 1. The State Cannot Indoctrinate Our Children... 37 2. The School Indoctrinated the Children Through Segregation and Presentation of a Targeted Documentary... 41 3. By Segregating the Children, the School Punished and Sought to Coerce the Children... 43 D. The Twelfth Circuit Court Properly Balanced the Walshes Interest... 44 III. CONCLUSION... 47 iv

U.S. Supreme Court Cases TABLE OF AUTHORITIES Page Ambrack v. Norwick, 441 U.S. 68, 76 (1979)... 38 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)... 38, 39 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982)... 38, 39 Bd. of Ed. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)... 12, 14 Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989)... 10, 14, 18 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)... 14 Cutter v. Wilkinson, 544 U.S. 709 (2005)... passim Edwards v. Aguillard, 482 U.S. 578 (1987)... 15, 18 Estate of Thorton v. Caldor, Inc., 472 U.S. 703 (1985)... 12 Foley v. Connelie, 435 U.S. 291, 296 (1978)... 38 Jacobson v. Mass., 197 U.S. 11 (1905)... 8, 17, 30 Larson v. Valente, 456 U.S. 228 (1982)... 14 Lee v. Weisman, 505 U.S. 577 (1992)... passim Lemon v. Kurtzman, 403 U.S. 602 (1971)... 15, 22 Lynch v. Donnelly, 465 U.S. 668 (1984)... 8, 9, 15, 27 McCreary Cnty. Ky. v. ACLU of Ky., 545 U.S. 844 (2005)... 10, 15 McGowan v. Md., 366 U.S. 420 (1961)... 15, 16 Myers v. Neb.. 262 U.S. 390 (1923)... passim Parham v. J. R., 442 U.S. 584 (1979)... passim v

Pierce v. Soc y of Sisters, 268 U.S. 510 (1925)... passim Prince v. Mass., 321 U.S. 158 (1944)... 34, 35, 36 Reno v. Flores, 507 U.S. 292 (1993)... 32 Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976)... 15 Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)... 28, 29 Santosky v. Kramer, 455 U.S. 745 (1982).... 42 Sch. Dist. of Abington Twp. Pa. v. Schempp, 374 U.S. 203 (1963)... 19, 42 Tex. Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)... 18, 19 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)... passim Troxel v. Granville, 530 U.S. 57 (2000)... passim United States v. Lee, 455 U.S. 252 (1982)... 8 United States v. Seeger, 380 U.S. 163 (1965)... 9 Van Orden v. Perry, 545 U.S. 677, 683 (2005)... 24 W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)... 38, 39 Wallace v. Jaffree, 472 U.S. 38 (1985)... 15, 19 Walz v. Tax Comm., 397 U.S. 664 (1970)... 8, 22 Wash. v. Glucksburg, 521 U.S. 702 (1997)... 32 Welsh v. United States, 398 U.S. 333 (1970)... 9 Widmar v. Vincent, 454 U.S. 263 (1981)... 19 Wis. v. Yoder, 406 U.S. 205 (1972)... passim Zelman v. Simmons-Harris, 536 U.S. 639 (2002)... 16 Zucht v. King, 260 U.S. 174 (1922)... 30 vi

Circuit Court Cases Brandon v. Bd. of Ed. of Guilderland Cent. Sch. Dist., F.2d 971 (1980)... 8 Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005)... 5 Jehovah's Witnesses in Wash. v. King Cnty. Hosp. Unit No. 1 (Harborview), 278 F. Supp. 488, 504 (W.D. Wash. 1967)... 45, 46 Parent s United for Better Schs., Inc. v. Sch. Dist. of Phila. Bd. Of Educ., 148 F.3d 260, 277 (3rd Cir. 1998)... 42 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)... 41 Scott v. Rosenberg, 702 F.2d 1263 (9th Cir. 1983)... 8 Sherman ex rel. Sherman v. Koch, 623 F.3d 501 (7th 2010)... 22, 23 United States v. Holmes, 614 F.2d 985 (5th Cir. 1980)... 22 Federal District Court Cases Americans United for Separation of Church and State v. Porter, 485 F.Supp. 432 (W.D. Michigan, Southern Division 1980)... 21 Caviezel v. Great Neck Public Schools, 739 F. Supp. 2d 273 (E.D.N.Y. 2010)... 24 Citizens Concerned for Separation of Church and State v. City and Cnty. of Denver, 526 F.Supp. 1310 (D. Colorado 1981)... 20 Hewitt v. Joyner, 705 F. Supp. 1443 (C.D. California 1989)... 22 Ingebresten v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996)... 15 O'Connor v. Washburn Univ. Bd. of Regents, 305 F. Supp. 2d 1217 (C.D. California 1994)... 18 Turner v. Hickman, 342 F.Supp.2d 887 (E.D. California 2004)... 25 Veed v. Schwartzkopf, 353 F.Supp. 149 (D. Nebraska 1973)... 11 State Court Cases In re D.D., Juvenile, 194 Vt. 508 (2013)... 45, 46 vii

Ohio v. Ingram, 708 N.E.2d 782, 783 (Ohio Ct. App. 1998)... 31 Constitution, Statutes, Session Laws, and Rules U.S. Const. amend. I... 8 U.S. Const. amend. XIV... 31 Pac. Health & Safety Code 123 (2015)... passim Pac. Health & Safety Code 124.1 (2015)... passim Religious Land Use and Institutionalized Persons Act of 2009... passim H.B. 864, 98th Gen. Assembly, 1st Reg. Sess. (Mo. 2015)... 13 Secondary Sources Bob Reich, How and Why to Support Common Schooling and Educational Choice at the Same Time, 41 J. Philosophy Educ. 709 (2007).... 40 Centers for Disease Control and Prevention, Measles Cases and Outbreaks, http://www.cdc.gov/measles/cases-outbreaks.html (last accessed Sept. 19, 2015)... 2, 13, 17 Chris T. Bauch, et al., Incorporating Herd Immunity Effects into Cohort Models of Vaccine Cost-Effectiveness, 29 MED. DECISION MAKING 557 (2009)... 46 Christopher P. Loss, Party School: Education, Political Ideology, and the Cold War, 16 Journal of Policy History (2004)... 40 Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 Hastings L.J. 1551 (2014).... 21, 26 Eve Dube, et. al., Vaccine Hesitancy, 9 Human Vaccines & Immunotherapeutics 1763 (2013)... 20, 26 Fine, Eames, & Heymann, Herd Immunity : A Rough Guide, 52 Vaccines 911, 911 (2001)... passim JD Grabenstein, What the World s Religions Teach, Applied to Vaccines and Immune Globulins, 31 Vaccine 2011 (2013)... 13, 14 viii

John Adams, Defense of the Constitutions (1787)... 40 John Adams, Diary (1778), available at http://westillholdthesetruths.org/quotes/130/the-foundation-of-nationalmorality-must.... 40 Laura Kann, et al., Health Education: Results From the School Health Policies and Programs Study 2006, 77 J. Sch. Health 408 (2007)... 39 Nanci Adler, Enduring Repression: Narratives of Loyalty to the Party Before, During and After the Gulag, 62 Eur. Asia 211, 214-24 (2010). P. Hamburger, Separation of Church and State, 106-07 (2002)... 40 Nathaniel Hawthorne, The Scarlet Letter (2008). A novel depicting a woman who is forced to where the letter A to represent her shame and label her to the community... 43 Patrick Corrigan, et al., An Attribution Model of Public Discrimination Towards Persons with Mental Illness, 44 J. Health & Soc. Behavior 162 (2003)... 43, 44 The Merriam-Webster Dictionary (11th ed. 2006)... 37 Webster s Third New International Dictionary (2002)... 38 ix

OPINIONS BELOW The opinion of the District Court of Pacifica is unreported and is contained in the record. R. at 1-6. The opinion of the Court of Appeals for the Twelfth Circuit (No. 15-9670) is also unreported and is contained in the record. R. at 9-13. STATEMENT OF JURISDICTION Rule 4(a)(i) of the National Health Law Moot Court Competition Official Rules provides that the requirement of a formal statement of jurisdiction has been waived. CONSTITUTIONAL AND STATUTORY PROVISIONS This case implicates the First and Fourteenth Amendments of the United States Constitution. Also at issue is Pacifica Health & Safety Code 123 and 124.1 (2015). STATEMENT OF THE CASE James and Cindy Walsh (hereinafter, the Walshes ) challenge the constitutionality of recent actions by the State of Pacifica and the West Beverley School District (hereinafter, the Petitioners ) concerning mandatory immunization of school children. R. at 1. The Walshes are the parents of twins, Brenda and Brandon, age 10, who will enter the fourth grade at West Beverley Elementary School (hereinafter, the School ) this fall. R. at 1. The School is a public school in 1

the city of West Beverley Heights, Pacifica. R. at 1. Currently, 123 of the Pacifica Health and Safety Code (hereinafter, the Code ) requires Pacifica children to receive certain immunizations before they may be admitted to Pacifica elementary schools. R. at 1, 7. In past years, under 124 of the Code, parents could exempt their children from the aforementioned immunization requirement by: (1) submitting to school officials documentation from a medical professional certifying that their child was medically unfit for a vaccination (hereinafter, medical exemption ); (2) submitting a statement to the effect that one s religious beliefs prohibited their child from receiving a vaccination (hereinafter, religious exemption ); or (3) submitting a statement that one s personal beliefs prohibited their child from receiving a vaccination (hereinafter, personal exemption ). R. at 1-2. Earlier this year the Pacifica legislature enacted 124.1, which supersedes 124, limiting immunization exemptions by striking the personal belief exemption. R. at 1-2. Pursuant to 124.1, the Walshes (along with all other parents in Pacifica) may no longer invoke the personal belief exemption that existed under 124. Parents may still invoke the medical and religious belief exemptions. R. at 2. The Pacifica legislature was motivated to enact 124.1 because of recent communicable disease outbreaks in the United States. 1 R. at 2. Citing recent scientific research that supports vaccination effectiveness, the Pacifica legislature revisited 124, and removed the personal belief exemption in an attempt to tighten 1 For example, the 2014 measles outbreak in Orange County, California. See Centers for Disease Control and Prevention, Measles Cases and Outbreaks, http://www.cdc.gov/measles/casesoutbreaks.html (last accessed July 19, 2015). 2

up immunization exemptions. R. at 2-3. Despite this intention, the Pacifica legislature maintained the religious belief exemption in 124.1. R. at 3. Since their children entered kindergarten at the School, the Walshes have invoked the personal belief exemption pursuant to 124 of the Code. 2 R. at 3-4. In their notices for exemption, Cindy Walsh endorsed a personal belief that vaccination risks outweigh the benefits. R. at 3-4. Thus, under 124.1 of the Code, if Brenda and Brandon are to continue attending West Beverley Elementary School, the Walshes will be forced to adopt religious beliefs; lie and say they hold religious beliefs that they in fact do not; or submit Brenda and Brandon to vaccinations. R. at 13. In the aftermath of the 2014 measles outbreak in California, the Pacifica Superintendent of Public Education, John Smith, made available an education documentary titled The Truth About Vaccines. R. at 3. A group of physicians created the documentary to target children. R at 3. Endorsing a message that minimized the risks of vaccines while extolling the benefits, the documentary sought to address what these physicians considered to be misperceptions about vaccines. R at 3. The documentary employs subtle methods of persuasion by using actual children to press the physicians points. R. at 3. Furthermore, the featured children are those of parents who held faulty beliefs about the link between vaccinations and autism. R. at 3. At the end of the documentary, the parents are 2 In the previous notices for exemption, Cindy Walsh indicated that years of personal research shaped her personal belief that immunizations are responsible for autism, and the benefits of vaccinations are exaggerated by large pharmaceutical manufacturers in an effort to dupe the public into buying their products. R. at 3-4. 3

shown the truth about vaccines and appear to have a change of heart, which allows their children to receive vaccines. R. at 3. The documentary closes by commanding: Now that you know the truth about vaccines, it s up to you to spread that truth to your family and friends. R. at 3. The School has since implemented the new health protocol, in which Yvonne Teasley (hereinafter, Ms. Teasley ), the principal of West Beverley Elementary, prohibited unvaccinated children from joining their classmates on fieldtrips. R. at 3. The children were then segregated and required to participate in fun activities like art projects and watching movies. R. at 3. On one such occasion, while their classmates were at a petting zoo, the Walshes children were held back and shown the documentary, The Truth About Vaccines. R. at 3-4. All of children who were shown the documentary were vaccine exempted. R. at 4-5. After, watching the documentary, the Walshes assert that their children now question their authority and competence, have been disrespectful, and even expressed a desire to receive vaccinations. R. at 4. At least four students who had previously received personal belief exemptions have been vaccinated since viewing the documentary. R. at 4. Ms. Teasley plans to show the documentary again during the upcoming school year without allowing parents an opportunity to opt out. R. at 3. The Walshes brought suit against the Petitioners in United States District Court for the District of Pacifica to challenge the constitutionality of 124.1. R. at 13. The Walshes sought to enjoin application of 124.1 on grounds that Pacifica s elimination of the personal belief exemption and maintenance of the religious belief 4

exemption violates the Establishment Clause. R. at 1. Additionally, the Walshes sought to enjoin any future showings of the vaccination documentary to their children on grounds that the School s practice of segregating only unimmunized children to view the vaccine documentary violates their parental rights protected by the Due Process Clause of the Fourteenth Amendment. R. at 1. The District Court for the District of Pacifica denied the Walshes motion for summary judgment on their Establishment Clause claim, and granted the Petitioners summary judgment motion on the same claim. R. at 6. The court looked to Cutter v. Wilkinson, 544 U.S. 709 (2005) and Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) when it held that the Constitution would not be offended by religious accommodations that do not themselves have any coercive effect on a nonbelieving third party. R. at 4-6. The District Court recognized the validity of the Walshes argument regarding the violation of their parental rights, and granted the Walshes motion for summary judgment on their Due Process claim. R at 6. In reaching its Due Process conclusion, the court distinguished the present case from Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) and Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005). R. at 5-6. Hence, the court held that the School s showing of the vaccination documentary was a targeted attempt to indoctrinate children to accept the state s point of view on a controversial issue. R. at 5-6. On appeal, the United States Court of Appeals for the Twelfth Circuit held 124.1 unconstitutional, and reversed the District Court s grant of summary 5

judgment for the School on the Establishment Clause claim. R. at 9. The court reasoned that 124.1 would likely coerce those who oppose vaccinations on questionable secular grounds to either adopt religious beliefs or to lie and say they hold religious beliefs that, in fact, they do not. R. at 12. Additionally, the Court of Appeals affirmed the District Court s grant of summary judgment for the Walshes on the Due Process claim, reasoning that Pacifica unjustifiably interfered with the Walshes fundamental rights when it forced the Walsh children to view the vaccination documentary. R. at 12-13. SUMMARY OF THE ARGUMENT Throughout the Nation s history, this Court has been called upon to balance the free exercise of religion against the Establishment Clause. This is another such case. The Walshes ask this Court to enjoin Pacifica from enforcing its new statute, Pac. Health & Safety Code 124.1, which grants a religious exemption to a generally applicable law. Contrary to the Establishment Clause, 124.1 favors and advances religion by granting a vaccination veto power to Pacificans who profess religious beliefs, and subsequently, requires Pacifica to become excessively entangled with religion. Section 124.1 further exceeds the permissible limits of a religious accommodation by coercing the Walshes to take up religion. Hence, the Twelfth Circuit properly held 124.1 to be an unconstitutional endorsement of religion. 6

In addition to the State unconstitutionally endorsing religion, the School violated the Walshes fundamental parental rights in the care, custody, and control of their children. This right is protected by the Fourteenth Amendment to the United States Constitution. This Court has consistently interpreted a parent s liberty interest in the care, custody, and control of their children as a fundamental right. Any act that violates or restricts this fundamental right is invalid, unless the state can show a substantial interest, which their actions are narrowly tailored to advance. Beginning with the presumption that the parents are fit and act in the best interest of their children, the state can only override a parent s decision when it shows extreme circumstances. There are no extreme circumstances in the record justifying the School s actions, which violate the parent s liberty interest in the care, custody and control of their children. The School violated the Walshes fundamental parental rights when it indoctrinated the Walshes children rather than educating them. The distinction between education and indoctrination is critical to the democratic foundation of this country. The School did not merely expose unvaccinated children to information regarding vaccines. Rather, the School sought to influence and instruct the children to reject their parent s teaching and preference on the issue. The children were specifically segregated and informed of the error of their parents ways by a targeted documentary that sent a strong message to the children concluding with a 7

directive to spread the truth. These actions constitute indoctrinate of the Walsh children. ARGUMENT AND AUTHORITIES I. THE TWELFTH CIRCUIT PROPERLY HELD SECTION 124.1 VIOLATES THE ESTABLISHMENT CLAUSE The First Amendment to the United States Constitution contains two religion clauses, which proclaim: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const. Amend. I. The first of these clauses, the Establishment Clause, commands a separation of church and state, though it need not be complete. Lynch v Donnelly, 465 U.S. 668, 673 (1984). Next, the Free Exercise Clause requires government respect for, and noninterference with, the religious beliefs and practices of American people. 3 Cutter, 544 U.S. at 719. The two Clauses express complementary values; however, they often exert conflicting pressures. Id. See Walz v. Tax Comm n, 397 U.S. 664, 672 (1970) (noting [W]e have been able to chart a course that preserved the 3 Petitioners claim removal of the religious exemption would violate the Free Exercise Clause. Courts have held the Free Exercise Clause is not offended by a simple medical exemption without a religious exemption. See Jacobson v. Mass., 197 U.S. 11 (1905) (holding state mandated vaccination scheme constitutional). See also Scott v. Rosenberg, 702 F.2d 1263 (9th Cir. 1983) (holding state may justify its infringement on religious liberty if it is necessary to accomplish overriding governmental interests); United States v. Lee, 455 U.S. 252 (1982) (holding not all burdens on religion are unconstitutional; state may justify limitation on religious liberty by showing it is essential to accomplish overriding governmental interests); Brandon v. Bd. of Educ. of Guilderland Cent. Sch. Dist., 487 F. Supp. 1219 (N.D.N.Y. 1980) (holding limitation on religious exercise is justified only if the state can demonstrate that its compelling interest in public health, welfare, morality, or other secular values justifies a restriction, and that less restrictive means to achieve state s secular ends are not available). Here, Pacifica s overriding governmental interests are the general health and welfare of its citizens. If the Pacifica legislature truly sought to tighten up vaccination exemptions to strengthen herd immunity and decrease the potential of disease outbreak, it could have maintained only the medical exemption to mandatory vaccinations. R. at 2-3. For further discussion concerning herd immunity, see Fine, infra note 13. 8

autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a tight rope (sic) and one we have successfully traversed. ) (internal quotations omitted). 4 There is no bright line rule where the Establishment and Free Exercise Clauses exert conflicting pressures, but rather, [e]very government practice must be judged in its unique circumstances to determine whether it [endorses] religion[.] Lynch, 465 U.S. at 694 (O Connor, J., concurring). In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed. Id. at 678. In the case at bar, Pacifica has enacted a new statute removing personal belief exemptions from the 4 In the alternative, the Walshes ask this Court to follow its jurisprudence in Seeger and Welsh. When statutes similar to the one at bar have been challenged in the past, this Court has interpreted religious beliefs to include sincere and meaningful personal beliefs occupying a parallel place in the life of its possessor to the orthodox beliefs in God of one who clearly qualifies for religious exemptions. R. at 11. See United States v. Seeger, 380 U.S. 165-66 (1965); Welsh v. United States, 398 U.S. 333 (1970). In both Seeger and Welsh, the petitioners refused to submit to induction in the armed forces, challenging the constitutionality of a religious exemption to combat found in the Universal Military Training and Service Act (hereinafter the Service Act ). R. at 11; 380 U.S. at 164-65. Seeger and Welsh both admitted their beliefs were not in relation to a Supreme Being as commonly understood, but this Court found the petitioners held their beliefs with undisputed sincerity. Seeger, 380 U.S. at 166; Welsh, 398 U.S. 337. The petitioners claimed exemptions by their belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed. Seeger, 380 U.S. at 166 (citations omitted). See Welsh, 398 U.S. at 336-39. This Court held that Seeger and Welsh should be granted the combat exemption under the Service Act, reasoning, the test of belief in a relation to a Supreme Being is whether a given belief that is sincere and meaningful 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 165-66 (emphasis added). Furthermore, this Court held, [w]here such beliefs have parallel positions in the lives of their respective holders we cannot say that one is in a relation to a Supreme Being and the other is not. Seeger, 380 U.S. at 166. A similar statutory interpretation can be made in the case at bar. R. at 11. The Walshes hold their beliefs towards vaccinations with upmost sincerity. R. at 3-4. Pacifica Health & Safety Code 124.1(2) (2015) defines religious beliefs as beliefs 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. Just as this Court held the sincere and meaningful beliefs of Seeger and Welsh should be included in the Service Act s religious exemption, here too, the Court should find that the Walshes personal beliefs should fit within the religious exemption of 124.1. 9

State s mandatory vaccination scheme affecting children enrolled in public and private schools in Pacifica. R. at 1-2. With the enactment of 124.1, Pacifica demonstrated favoritism and a preference towards religion. R. at 10. The State sent a message to religious nonadherents that they are outsiders, not full members of the political community, and may only claim only a medical exemption. Simultaneously, the State sent a message to religious adherents, 5 raising their stature as insiders and favored members of the political community. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) (holding when the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment Clause value of official religious neutrality). Pacifica has violated the Establishment Clause by taking a position that favors and advances religion. [T]he Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices. Cnty. of Allegheny v. ACLU Greater Pittsburg Chapter, 492 U.S. 573, 597 (1989) (internal quotations omitted). Because adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion, id. at 589, the Establishment Clause prohibits the State from compelling the Walshes to profess a 5 Webster s defines adherent as a person who is loyal to a leader, group, or religion: a person who adheres to or supports a system or set of principles. 10

religious belief in order to obtain a secular result. See Veed v. Schwartzkopf, 353 F. Supp. 149, 152-53 (D. Neb. 1973). A. The Case at Bar is Distinguishable from Cutter Petitioners argument relies heavily on the District Court s analysis of Cutter; but, as the Twelfth Circuit recognized, the case at bar is distinguishable from Cutter. R. at 11. This Court has held there is room for play between the Establishment and Free Exercise Clauses, which is often manifested through state granted religious exercise accommodations. Cutter, 544 U.S. at 714. However, [a]t some point, accommodation may devolve into an unlawful fostering of religion. Id. at 719 (internal quotations omitted). Pacifica s accommodation is an unlawful fostering of religion. In Cutter the respondents challenged the constitutionality of a provision within the Religious Land Use and Institutionalized Persons Act of 2009 (hereinafter RLUIPA ). Id. at 717. The challenged provision allowed prisoners confined to penal institutions an increased opportunity to freely exercise their religion. 6 Upon request, prison administrators could grant reasonable religious exercise accommodations to prisoners. Id. at 715-17. At the crux of their argument, the Cutter respondents claimed that RLUIPA unlawfully advanced religion by providing special benefits to prisoners who claimed to be religious adherents of mainstream faiths. Id. at 717. 6 Section 3 of the RLUIPA covered state-run institutions-mental hospitals, prisons, and the line-in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. Cutter, 544 U.S. at 712 (citing 42 U.S.C. 2000cc-1(a)). 11

This Court found RLUIPA constitutional as it did not exceed the limits of permissible government accommodation of religious practices. Id. at 714. The Cutter Court reasoned RLUIPA s challenged provision alleviate[d] exceptional government-created burdens on private religious exercise. Id. at 720. Additionally, this Court reasoned RLUIPA accounted for the burdens requested accommodations might impose on nonbeneficiaries (i.e., religious nonadherents). Id. Further, this Court noted the challenged provision was drafted neutrally, and thus, its application would not favor individual and specific bona fide faiths. Id. See also Estate of Thorton v. Caldor, Inc., 472 U.S. 703 (1985); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994). Unlike RLUIPA, 124.1 is not an accommodation, but rather, an endorsement of religion. Cutter, 544 U.S. at 719. Application of 124.1 is distinguishable from RLUIPA s application in Cutter. R. at 11. Here, 124.1 exceeds the limits of permissible government accommodation. Id. In Cutter, the state had a unique interest in the class covered by RLUIPA as they were prisoners physically confined to institutions twenty-four hours a day for the entirety of their sentence. Cutter, 544 U.S. at 715; R. at 11. Thus, the prisoners in Cutter were completely dependent on government permission and accommodation to freely exercise religion. 544 U.S. at 721. Conversely, in the case at bar, the affected class consists of children attending Pacifica public and private schools, and their parents or guardians. R. at 8. The affected class here is not permanently confined to an institution or completely under the control of the 12

State. Thus, the State does not have a unique interest in the class affected by 124.1, as the class is not dependent on government permission and accommodation to freely exercise religion. R. at 1, 11. Additionally, in Cutter, prison administrators recognized and weighed RLUIPA s effects on nonbeneficiaries by using their experience and expertise in approving or denying religious accommodations. 544 U.S. at 716, 723; R. at 11. 7 The case at bar is distinguishable from Cutter. Here, the challenged provision was drafted for widespread application, not limited to the confines of a corrective institution. R. at 7-8. RLUIPA required prison administrators to use their deference in granting religious accommodations, 544 U.S. at 716, but here, 124.1 provides for the automatic granting of an exemption... with no weighing of the burdens such an exemption would place on nonbeneficiaries. 8 R. at 11. Furthermore, in Cutter this Court reasoned RLUIPA s challenged provision constitutional because it did not have the effect of favoring an individual or specific bona fide faith. 544 U.S. at 723. In the case at bar, research suggests there are only three mainstream religious sects that teach vaccination abstention. 9 Thus, 7 States have begun making efforts to balance religious accommodations against the interest of nonbeneficiaries. See H.B. 864, 98th Gen. Assembly, 1st Reg. Sess. (Mo. 2015) ( each principal shall send a letter home with students informing parents and guardians that there is a nonimmunized student in attendance ) R. at 11 n.8. 8 Seemingly, Pacifica did not consider the risks imposed on its citizens by those receiving religious exemptions. For example, measles is very contagious and can spread rapidly when it reaches a community where groups of people are unvaccinated. The symptoms of measles generally do not appear sooner than seven to fourteen days after a person is infected. Measles spreads through the air, and is almost impossible to contain. If one person has measles, nine out of ten people the infected person comes into contact with will also become infected if they are not protected. Center for Disease Control, http://www.cdc.gov/measles/. See also Fine, infra note 13. 9 See Grabenstein, infra note 11. 13

through 124.1, Pacifica has favored three individual and specific bona fide faiths. For these reasons, Cutter is distinguishable from the case at bar. R. at 11. B. As Applied, Section 124.1 Fails the Lemon Test This Court has long held, laws discriminating among religions are subject to strict scrutiny, 10 and that laws affording a uniform benefit to all religions should be analyzed under Lemon. Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 339 (1987) (emphasis in original; internal quotations omitted). The Lemon test engages a three-part analysis. First, the challenged statute must have a secular legislative purpose. Next, the statute s principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive 10 Here, 124.1 is subject to, and fails the strict scrutiny test because it creates an exception to a generally applicable statute that otherwise serves the purpose of favoring and advancing three mainstream religious sects. See JD Grabenstein, What the World s Religions Teach, Applied to Vaccines and Immune Globulins, 31 Vaccine 2011 (2013) (finding only the Dutch Reformed Church, one ultra-orthodox sect of Judaism, and the Amish teach vaccination abstention). The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. Larson v. Valente, 456 U.S. 228, 244 (1982). See Cutter, 544 U.S. at 723 (reasoning the challenged provision did not favor particular bona fide faiths as it confer[red] no privilege on any particular religious sect[ ] ); Kiryas Joel, 512 U.S. at 706 (holding a state law in violation of the Establishment Clause, in part because it single[d] out a particular religious sect for special treatment ); County of Allegheny, 492 U.S. at 598 (holding a display of a crèche representing the nativity scene in a prominent setting within the county courthouse, sent an unmistakable message promoting a patently Christian message). Just as the crèche in County of Allegheny sent an unmistakable message supporting Christianity, 492 U.S. 598, here too, 124.1 effectively communicates a message supporting the message the Dutch Reformed Church, one ultra-orthodox sect of Judaism, and the Amish. Grabenstein, 31 Vaccine 2011. As written, 124.1 allows exemptions when a parent, guardian, or student is an adherent to a sincere religious belief whose teachings are opposed to immunizations. R. at 8 (emphasis added). Thus, application of 124.1 will favor three religious sects above all others. This type of governmental practice is expressly prohibited by this Court s Establishment Clause jurisprudence. County of Allegheny, 492 U.S. 573. 14

government entanglement with religion. 11 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The Twelfth Circuit correctly concluded application of 124.1 fails the first two prongs of the Lemon test, and thus, 124.1 is unconstitutional. R. at 12. The Walshes submit 124.1 fails all three Lemon prongs. 1. Section 124.1 Does Not Have a Secular Purpose The Establishment Clause mandates neutrality by the State. McCreary Cnty., 545 U.S. at 844. Pacifica must confine itself to secular objectives, which neither advance nor impede religious activity. Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976). For example, in McGowan v. Md., 366 U.S. 420, 434 (1961), this Court examined the purpose of Sunday Closing Laws, determining such laws achieve secular goals by prescribing Sunday as a day of rest. Conversely, in Ingebresten, the Fifth Circuit determined a state statute did not have a secular purpose. 88 F.3d at 279. The state s legislative intent of accommodate[ing] the free exercise of religious rights of its students in public schools combined with teachers and administrators suggesting [to students] that a prayer be given did not advance a secular purpose. Id. 11 For this Court s application of the Lemon test, see Lee v. Weisman, 505 U.S. 577 (1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Lynch, 465 U.S. 668. See also Ingebresten v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996) (holding the challenged statute failed all three prongs of the Lemon analysis because: (1) the statute permitted public school students to initiate nonsectarian prayer at various compulsory and noncompulsory school events, and the legislature stated the statute s purpose was to accommodate the free exercise of religious rights of its student citizens in the public schools ; (2) the statute gave preferential, exceptional benefit to religion that it did not extend to anything else; and (3) government representatives were allowed to lead students in prayer and punish students who left class or assemblies in order to avoid listening to prayer). 15

Section 123 has a secular purpose as it mandates vaccinations in an attempt to increase herd immunity and eradicate contagious diseases. R. at 2-3. By contrast, 124.1 grants unnecessary religious exemptions, undermining 123. The Pacifica legislature endorsed a religious, non-secular purpose through its grant of vaccination veto power to religious adherents. Id. at 8. Unlike McGowan where the Sunday Closing Laws advanced secular purposes by prescribing a day of rest to all of its citizens, 366 U.S. at 434, Pacifica cannot advance a secular purpose by allowing religious adherents to opt their children out of otherwise mandatory vaccinations. Rather, Pacifica s legislature included religious exemptions in 124.1 because the state valued religion above all other beliefs. R. at 12. Petitioners argue 124.1 serves a secular purpose because it was enacted as a general welfare statute. 12 Petitioners argument is flawed. Section 123 is a general welfare statute. Section 124.1 is an exception to a general welfare statute. Id. at 7-8. An exception to a general welfare statute cannot itself be a general welfare statute. While 123 advances a legitimate general welfare requirement to vaccinate, 124.1 turns about and grants vaccination veto power to those profess religious beliefs. Id. The State may accommodate religious practices; but, accommodation must be measured so that it does not override other significant interests. Cutter, 544 U.S. at 722 (emphasis added). Section 124.1 does this very thing. 12 For an example of a general welfare statute, see Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (holding a school voucher program constitutional; although the majority of students participating in the program were enrolled in religiously affiliated schools, the program was neutral in all respects towards religion and was enacted for the valid secular purpose of providing educational assistance to poor children in a failing public school system). 16

The religious exemption provided by 124.1 overrides other significant interests by endangering the health of all unvaccinated individuals in Pacifica. The purpose of vaccination is well established. See Jacobson, 197 U.S. at 34 (noting vaccinations are intended to prevent the transmission or spread of disease). With fewer vaccinated individuals, there will be an increased possibility of a widespread contagious disease outbreak in Pacifica. See Center for Disease Control, supra note 9. Research suggests immunizations are most effective when the unimmunized are kept at a minimum. 13 See R. at 10 n.7. Additionally, at no fault of their own, infants who are yet to receive vaccinations and individuals who require medical exemptions will be put at risk by a higher volume of unvaccinated individuals in Pacifica. See Fine, supra note 13. Application of 124.1 overrides other significant interests by endangering the general health and welfare of Pacifica citizens. Pacifica disregarded the general welfare of its citizens by allowing religious exemptions to the State s mandatory vaccination scheme. R. at 7-8. Were 124.1 truly a statute enacted to further the general welfare of Pacifica it would only include a medical exemption to mandatory vaccinations. By including a religious 13 Regarding the term herd immunity, [a] common implication of the term is that the risk of infection among susceptible individuals in a population is reduced by the presence and proximity of immune individuals[.] Vaccination of groups can slow disease transmission in general populations or reduce incidence among population segments that may be at risk of severe infections. In fact, a very high level of vaccinated individuals in a community may mean the chance of contracting a disease is close to zero. When vaccination has costs to the individual side effects, time, money, inconvenience individual decisions about whether to be vaccinated are based on a complex balancing of perceived costs of vaccination and disease. Due to vaccination costs to the individual, some individuals choose to benefit from everyone else s vaccinations by freeloading. People are in effect performing complex cost-benefit analyses, based on imperfect assumptions, when deciding whether or not to have themselves or their children vaccinated. Fine, Eames, & Heymann, Herd Immunity : A Rough Guide, 52 Vaccines 911 (2001). 17

veto to vaccination, 124.1 is not a general welfare statute, but rather, an unconstitutional endorsement of religion. 2. Section 124.1 Unconstitutionally Favors and Advances Religion This Court has long held that the Establishment Clause prohibits government from favoring one religion or religious sect over another. Cnty. of Allegheny, 492 U.S. at 590-91. Under the Establishment Clause, the very concept of endorsement conveys the sense of promoting someone else s message. Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the government s lending its support to the communication of a religious organizations religious message. Id. at 600-01. With the enactment of 124.1, the Pacifica legislature has unlawfully favored and advanced religion by holding religious beliefs out as being more important than nonreligious beliefs. R. at 12. This is nowhere more clearly seen than in Pacifica s removal of the personal belief exemption, while continuing the religious belief exemption. Id. a. Section 124.1 endorses religion Government may not favor religious beliefs over disbelief. Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989). When applying this simple rule, courts have held the state endorses religion if its conduct has either the purpose or the effect of conveying a message that religion or a particular religious belief is favored or preferred. O'Connor v. Washburn Univ. Bd. of Regents, 305 F. Supp. 2d 1217, 1223-24 (D. Kan. 2004). See Edwards, 482 U.S. at 593 (invalidating state s 18

Creationism Act because it endorsed religion in its purpose; preference for particular religious beliefs constitutes an endorsement of religion); Wallace, 472 U.S. at 60 (holding Alabama s moment-of-silence statute unconstitutional because it was enacted... for the sole purpose of expressing the State s endorsement of prayer activities[ ] ) (emphasis added); Sch. Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 216 (1963) (noting the Establishment Clause is not restricted to forbidding governmental preference of one religion over another). The Pacifica legislature, by continuing the religious belief exemption but eliminating the personal belief exemption signals that religious beliefs are distinguishable from and superior to personal beliefs. R. at 12. Pacifica endorsed religion when it granted vaccination veto power to religious adherents, public health and welfare notwithstanding. The Pacifica legislature made this evident when its members explicitly stated the religious exemption was maintained because the state valued religion above all other beliefs. R. at 12. This is a direct violation of the simple rule this Court stated in Texas Monthly. Hence, a reasonable observer can infer the Pacifica legislature unconstitutionally endorsed religion and the profession of religious beliefs. b. Section 124.1 provides a direct benefit to religious adherents Incidental benefits to religious adherents do not violate the Establishment Clause. Widmar v. Vincent, 454 U.S. 263 (1981). However, courts have held government activities with a direct and immediate tendency to benefit religion violate the Establishment Clause. Section 124.1 advances religion through the 19

direct and immediate benefit it provides adherents of religious sects whose teachings endorse vaccination abstention. See Citizens Concerned for Separation of Church and State v. City and Cnty. of Denver, 526 F. Supp. 1310 (D. Colo. 1981) (holding government activity violates the Establishment Clause when it has a direct and immediate tendency to advance religion) (emphasis added). Pacifica s legislature did not merely provide incidental benefits to religion. Section 124.1 provides a direct and substantial benefit to adherents of religious sects that endorse vaccination abstention. R. at 8. Section 124.1 has a direct and immediate tendency to advance religion by granting a right of refusal, which allows adherents to trump the general welfare benefits inherent in mandatory vaccinations. Id. The number of parents who view vaccination exemptions as benefits is growing rapidly; thus, the number of parents resisting state imposed vaccination schemes is increasing rapidly. Eve Dube, et. al., Vaccine Hesitancy, 9 Human Vaccines & Immunotherapeutics 1763 (2013). Research suggests parents reasonably become skeptical of mandatory vaccination schemes through: prior experiences; risk perceptions; trust in the state; social pressure; and moral convictions. Id. A religious exemption to mandatory vaccinations is a benefit, and the Walshes certainly view it as such. R. at 11. The benefit of vaccination exemption is one the Walshes value, and should be entitled to claim without professing a religious belief. Yet, pursuant to 124.1, only those who are willing to profess religious beliefs can reap the direct and immediate benefits of vaccination exemption. Id. at 8. 20

c. Pacifica does not benefit from 124.1 The Petitioners argue Pacifica receives a benefit from 124.1, but the Petitioners argument misses the point. Pacifica certainly receives the benefit of herd immunization through 123. R. at 2-3. But, by allowing an unwarranted religious exemption to the State s mandatory vaccination scheme, 124.1 undermines the benefit flowing to Pacifica through 123. Id. at 8. Moreover, if Pacifica did receive some benefit from 124.1, even a highly significant benefit to the state will not save a program that still has the primary effect of advancing religion. Americans United for Separation of Church and State v. Porter, 485 F.Supp. 432, 436 (D. Minn. 1980). The Pacifica legislature plainly intended 123 to provide a significant benefit to the State by increasing herd immunity, and thereby limiting the potential of disease outbreak. R. at 2-3. Unfortunately, while 123 provides a benefit to the state, 124.1 undermines that benefit while advancing religion at the cost of public well-being. See Fine, infra note 13. Section 124.1 serves to encourage parents skeptical of vaccinations to take up religion. R. at 11. In fact, research suggests that parents are willing to use extreme measures to gain vaccination exemptions for their children. 14 Id. at 12. Further, material harm will flow from the religious exemptions. 15 Id. at 11. The Twelfth Circuit specifically reasoned, immunized children who claim no exemption are inexplicably put at risk by the statutorily 14 See Dorit Rubinstein Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 Hastings L.J. 1551 (2014). 15 See Fine, supra note 13. 21

authorized religious exemptions[ ] ). The Walshes will undoubtedly suffer from the religious exemption 124.1 provides to religious adherents. Pacifica has allowed religious adherents vaccination veto power without any rational relationship to health care. R. at 12. Exempt religious adherents will increase the risk of disease contraction to unvaccinated children and adults. See Fine, supra note 13. Through no fault of their own, families with children attending Pacifica schools will be placed at greater risk of contracting infectious diseases. Id. For these reasons, 124.1 undermines the general health and welfare purpose of 123 while unconstitutionally favoring and advancing religion. 3. Section 124.1 Excessively Entangles the State With Religion Government action can violate the Establishment Clause not only by intentionally establishing, sponsoring, or supporting religion, but also if the end result is an excessive government entanglement with religion. United States. v. Holmes, 614 F.2d 985, 989 (5th Cir. 1980) (citing Walz, 397 U.S. at 674). Government activity may excessively entangle the state with religion through administrative involvement, or by creating a danger of political fragmentation and divisiveness along religious lines. Hewitt v. Joyner, 705 F. Supp. 1443, 1450 (C.D. Cal. 1989) (overruled on other grounds) (citing Lemon, 403 U.S. at 622-24). Such is the case here, directly pitting non-religious persons against those who have a religious opt-out option. In Sherman v. Koch, 623 F.3d 501 (7th Cir. 2010), a provision of the Illinois Silent Reflection and Student Prayer Act (hereinafter the Prayer Act ) mandated a 22