From the March 2006 Idaho Observer:

So You’ve Decided Not to Vaccinate…Now What?

by Alan Phillips

Due to the growing number of people wanting to claim legal exemptions to state mandated vaccines for daycare, public and private schools, colleges and employment, Alan Phillips has attempted to crystallize the legal issues many face when dealing with bureaucrats and how to minimize problems while successfully obtaining legal exemptions.

I’ve noticed a lot of confusion about vaccine exemptions lately, so I am writing this article to, hopefully, clear the air a bit. Since medical exemptions are of limited application, and philosophical exemptions are currently available in only 18 states, I’ll focus on religious exemptions. The boundaries of religious exemptions are pretty broad, so don’t be too quick to assume that you don’t qualify for one.

Vaccine requirements and exemptions are products of state law, so the only federal law that applies to religious exemptions is Constitutional law as interpreted by state and federal courts. How that law applies depends, in part, on where you live. Appellate court opinions in your state dictate how your state’s lower courts must rule on similar cases; such appellate court opinions are "binding precedent" for the lower courts. Those opinions are only "persuasive precedent" for other states though, which means that other states are free to issue inconsistent opinions if they so choose. Similarly, the ruling of a federal court is binding on the lower federal and/or state courts within its jurisdiction, but is only persuasive precedent for the state and federal courts outside of its jurisdiction.

There is a line of federal court cases from New York district courts and the Second Circuit (the federal appellate court for NY, CT, and VT) that have helped to broaden the scope of vaccine religious exemptions. Though not binding precedent for most of the country, states around the U.S. have nevertheless followed these decisions. The practical result? Your Constitutional right to exercise a religious exemption (in states that offer one—every state except WV and MS), may include: 1) It doesn’t matter whether or not you belong to an organized religion; 2) If you belong to an organized religion, it doesn’t matter whether or not the religion has tenets in opposition to immunizations; 3) If your Constitutional rights are violated, you may be awarded monetary damages in court; and 4) Vaccines received previously may not prevent you from exercising a present religious exemption. In fact, these cases held that there are only two requirements for exercising a religious exemption—that the belief(s) in opposition to vaccination be religious (and this includes personal religious beliefs), and that it (they) be sincerely held. Since these decisions came down, many people have qualified for religious exemptions that may not have previously.

Some states have statutes requiring membership in an organized religion with tenets opposed to immunizations. Federal courts in NY and AR held that such requirements violated the establishment and free exercise clauses of the First Amendment to the U.S. Constitution. However, the outcome differed: In NY, the court required the state to modify the statute to make it Constitutional, while in AR, the religious exemption statute was stricken altogether (fortunately, religious and philosophical exemptions were later enacted by the AR State Legislature).

So, if your state has one of these statutes, the clause requiring membership in an organized religion is probably unconstitutional and not enforceable in court, but whether that means you would ultimately gain or lose your right to exercise the exemption may be unclear. In any event, there is a strong legal argument supporting the exercise of a religious exemption by any person with a sincerely held religious belief in opposition to vaccines, regardless of what the state statute says.

Let’s expand on the legal requirements just a bit. As to "religious," the U.S. Supreme Court has defined religion, for legal purposes, as not needing to "be founded upon a belief in the fundamental premise of a ‘God’ as commonly understood in western theology." The Court has further held that "the test of belief ‘in relation to a Supreme Being’ is whether a given belief is sincere and meaningfully occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God," and that religion involves "the ‘ultimate concerns’ of individuals." These guidelines allow for a wide range of personal, individualized beliefs to qualify as "religious" for legal purposes. As for the "sincerely held" prong, it may be generally difficult to prove that one’s beliefs are not sincere, but if one were to, e.g., join a church solely for the purpose of avoiding vaccines, they may run the risk of being denied the exemption on the basis that their beliefs are not sincerely held.

Regarding employers’ vaccine requirements of employees, if not pursuant to state law, employees are not subject to exemption; that is, there can be no law exempting one from a requirement that is not itself a law from which one would be exempted. However, Title VII of the Civil Rights Act of 1964 requires employers with over 15 employees to "reasonably accommodate" the religious beliefs and practices of their employees, so this federal legislation may help some people to avoid workplace vaccine requirements.

While attempting to obtain a legal exemption to state or employee vaccine requirements, there are a variety of situations in which you really should consult an attorney, including situations where:

1) You’ve been challenged, or have encountered resistance or have other reason to anticipate a challenge;

2) There is a custody dispute in which one parent wants to vaccinate and the other parent doesn’t;

3) You’re concerned about the possibility of being accused of abuse or neglect for failure to vaccinate, or have already been so accused (such accusations raise the prospect of the state removing children from their homes);

4) You live in a state with a religious exemption statute that requires membership in an organized religion whose tenets are in opposition to the immunization requirements, and you don’t belong to such a church or;

5) You want to proactively minimize your chances of being challenged (let’s face it—health authorities aren’t standing by idly as the anti-vaccine movement grows, and they may be looking to make examples of people whose exemption claims appear susceptible to a challenge).

Religious exemption rights involve many areas of law; few, if any, are "black and white," and the applicability varies with the unique circumstances of each case. Unfortunately, this is an area of law that most attorneys have not spent time researching. Therefore, consulting a knowledgeable attorney who has actually specialized in health freedom issues and vaccine exemptions is usually a good step to take. Once you know the true nature and scope of your rights, you can confidently and safely stand your ground against the often-times coercive tactics of local officials in their efforts to get you to vaccinate—against your conscience and better judgment.

Alan Phillips was unexpectedly catapulted into the international vaccine-awareness limelight following the publishing of his "Dispelling Vaccination Myths" articles in the late 90s and early 00s. His well-footnoted article has been utilized by medical schools in three countries, published internationally on numerous websites, in Nexus Magazine, and in numerous domestic and foreign newsletters. Alan’s independent research into the growing international vaccine controversy has helped to educate people around the world about the many reasons to question standard immunization policy and to make informed choices. Inspired by his research findings, Alan became an attorney, and now offers well-researched presentations about both vaccination concerns generally and legal exemptions specifically to people around the country.

Alan G. Phillips, Attorney at Law

919-960-5172, lawpapa@nc.rr.com

P.O. Box 3473, Chapel Hill, NC 27515-3473