Why Some Religious Accommodations for Mandatory Vaccinations Violate the Establishment Clause

51 Pages Posted: 19 Oct 2017

See all articles by Hillel Y. Levin

Hillel Y. Levin

University of Georgia School of Law

Date Written: October 18, 2017

Abstract

All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose third party harms in the context of states' mandatory vaccination programs and proposes one approach to the line-drawing problem. This approach is consistent with the cases, offers predictable results in many situations, and accounts for relative judicial and legislative competencies. It suggests that in most cases, laws that offer religious exceptions, exemptions, or accommodations that impose third party harms are only unconstitutional if the law offers no comparable nonreligious exceptions.

Under this approach, most states' religious accommodations in the vaccination context violate the Establishment Clause. The Article also considers the relevant political dynamics and important implications of this conclusion.

Keywords: religious accommodation, Establishment Clause, vaccination, public schools, non-vaccination, mandatory vaccination programs, constitutional law, First Amendment, education, health law, disease, Free Exercise Clause, Fourteenth Amendment, vaccination exemptions

JEL Classification: K19, K32, K36, I18

Suggested Citation

Levin, Hillel Y., Why Some Religious Accommodations for Mandatory Vaccinations Violate the Establishment Clause (October 18, 2017). Hastings Law Journal, Vol. 68, 2017; University of Georgia School of Law Legal Studies Research Paper No. 2017-31. Available at SSRN: https://ssrn.com/abstract=3055369

Hillel Y. Levin (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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