The Legal Landscape of Religious Exemptions to School Vaccination Requirements
June 7, 2024
Overview
Recent litigation under the First Amendment’s Free Exercise Clause has challenged school vaccination requirements that do not allow for a religious exemption. The rulings in these cases have important implications for public health.
All 50 states have legislation requiring specified vaccines for students. Most, but not all, grant religious exemptions to those requirements for people who have religious objections to immunizations. Recent litigation under the First Amendment’s Free Exercise Clause has challenged school vaccination requirements that do not allow for a religious exemption. The rulings in these cases have important implications for public health.
A series of U.S. Supreme Court decisions during the COVID-19 pandemic affected how courts analyze free exercise claims. Most significantly, the Court made it more difficult for government actors to defend laws that affect religious practices. The new legal analysis requires courts to assess whether religious and secular activities being regulated differently are “comparable.” See Tandon v. Newsom. If a public health order treats secular and religious activities differently, the health department must show that the activities are not comparable or give a compelling justification for treating them differently.
In Tandon v. Newsom (2021), the Court prevented California from enforcing COVID-19 restrictions that limited all home gatherings, religious and secular, to persons from no more than three households, but allowed gatherings of persons from more than three households in some commercial settings. The Court held that a law is not “neutral and generally applicable” if it treats “any comparable secular activity more favorably than religious exercise,” and comparability is assessed with respect to the purpose the government gives to justify the law. Applying this rule, the Court determined that the home gatherings and commercial settings were comparable but were treated differently without a compelling justification, violating the Free Exercise Clause.
Lower courts are applying this Tandon comparability analysis in cases challenging the lack of religious exemptions in school vaccination requirements. One example is a case in Connecticut in which the state legislature, citing increased health risks to children in public schools from unvaccinated students, passed a law in 2021 repealing its religious vaccine exemption. The repeal of the exemption was challenged in court. In the resulting case, We The Patriots USA, Inc. v. Connecticut Office of Early Childhood Development (2023), the Second Circuit Court of Appeals upheld Connecticut’s repeal of its religious exemption. The Circuit Court assessed whether medical exemptions and religious exemptions are comparable with respect to the state’s asserted interest in protecting the health and safety of students. The court noted that one of the purposes of vaccination is to protect students who cannot be vaccinated for medical reasons from exposure to disease, and concluded that medical exemptions promote this interest, while religious exemptions do not. As a result, the two types of exemptions were not comparable and treating them differently was acceptable. The plaintiffs’ appealed to the Supreme Court, and the petition is currently pending.
A recent decision in California reached a similar conclusion with respect to medical exemptions and considered a few other exemptions and conditions. In Royce v. Bonta (2024), the Southern District of California determined that medical exemptions served the primary interest of protecting students’ health and safety while personal belief exemptions would not. California laws also exempted students enrolled in home-based private schools and independent study programs and students who would be prevented from accessing an individualized education program (“IEP”). Additionally, in some circumstances, the law allowed conditional admission to school pending documentation of immunization. The court reasoned that programs without in-class instruction did not pose the same disease transmission risk, federal law required implementation of IEPs, and conditional admission was not really an exemption because vaccination was still required. For these reasons, the personal belief exemption was not comparable to the included exemptions or conditional admission.
In two cases, courts have taken a different view. In Bosarge v. Edney (2023), the Southern District of Mississippi became the only court to require a religious exemption to a state’s school vaccination requirement. The court concluded that because public officials reviewed medical exemptions on an individualized basis, the law was not neutral or generally applicable. In Fox v. Makin (2023), considering a motion to dismiss, the U.S. District Court for the District of Maine focused on the lack of a difference in transmission risk between an individual child who is unvaccinated for medical reasons and an individual child unvaccinated for religious reasons. The court acknowledged that the exemptions might not be comparable—medical exemptions might be rarer, more time-limited, or more geographically dispersed than religious exemptions—but the defendants had not presented this data. The court allowed the case to proceed to trial.
As courts continue to apply the Tandon comparability analysis, the impacts on public health requirements will become clearer. However, at this time, health officials should be aware that if a vaccination requirement is challenged under the Free Exercise Clause for lacking a religious exemption, they will need to communicate the public health purposes of vaccination and show why each exemption included in the law promotes those goals while a religious exemption would not. Under current case law, making this distinction will certainly be necessary and could determine the outcome of a case.
This article was written by Alison Ryan, M.P.H., Student Legal Researcher, Network for Public Health Law – Mid-States Region and J.D. Candidate, University of Washington (2025). The post was reviewed by Peter Jacobson, J.D., M.P.H., Senior Advisor, Network for Public Health Law – Mid-States Region.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.