We The Patriots USA, Inc et al v. Connecticut Office of Early Childhood Development et al
Filing
56
ORDER: For the reasons set forth in the attached Order, Defendants' Motions to Dismiss #21 , #22 , #23 are GRANTED. Signed by Judge Janet Bond Arterton on 01/11/2022. (Canevari, D.)
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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WE THE PATRIOTS USA, INC; CT FREEDOM
ALLIANCE, LLC; CONSTANTINA LORA; MIRIAM
HIDALGO; and ASMA ELIDRISSI,
Civil No. 3:21cv597 (JBA)
January 11, 2022
Plaintiffs,
v.
CONNECTICUT OFFICE OF EARLY CHILDHOOD
DEVELOPMENT; CONNECTICUT STATE
DEPARTMENT OF EDUCATION; CONNECTICUT
DEPARTMENT OF PUBLIC HEALTH; BETHEL
BOARD OF EDUCATION; GLASTONBURY BOARD
OF EDUCATION; and STAMFORD BOARD OF
EDUCATION,
Defendants.
ORDER GRANTING MOTIONS TO DISMISS
The Religion Clause of the First Amendment itself contains two clauses—the
Establishment Clause and the Free Exercise Clause. U.S. Const. amend. I (“Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof.”). “[T]here are some state actions permitted by the Establishment Clause but not
required by the Free Exercise Clause.” Locke v. Davey, 540 U.S. 712, 719 (2004) (concluding
that the state did not violate the Free Exercise Clause where it refused to provide
scholarship aid to students seeking devotional theology degrees). Religious exemptions to
vaccine mandates provide such an example. See Phillips v. City of N.Y., 775 F.3d 538, 543 (2d
Cir. 2015) (“New York law goes beyond what the Constitution requires by allowing an
exemption for parents with genuine and sincere religious beliefs.”).
Connecticut Public Act No. 21-6 (“P.A. 21-6”) requires students in public or private
school to be vaccinated against certain communicable diseases. (Compl. [Doc. # 1] ¶ 17.)
Connecticut law previously allowed students to obtain a religious exemption to the vaccine
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requirement, but section one of P.A. 21-6 provides no religious exemption to students that
do not have a prior existing exemption. (Id.) Plaintiffs seek to permanently enjoin
Defendants from enforcing P.A. 21-6 and request a declaratory judgment that P.A. 21-6
violates the Free Exercise Clause of the First Amendment; the right to privacy and medical
freedom under the First, Fourth, Fifth, and Fourteenth Amendments; the Equal Protection
Clause of the Fourteenth Amendment; the right to child rearing under the Fourteenth
Amendment; and the Individuals with Disabilities Education Act (“IDEA”). (Id. at 14.)
Defendants move to dismiss all five counts [Docs. ## 21, 22, 23]. Child USA, Americans
United for Separation of Church and State, Central Conference of American Rabbis,
Interfaith Alliance Foundation, Men of Reform Judaism, Reconstructionist Rabbinical
Association, Union for Reform Judaism, and Women of Reform Judaism join as amici curiae,
urging dismissal of Plaintiffs’ complaint [Docs. ## 25, 27].
For the reasons that follow, the Court GRANTS Defendants’ Motions to Dismiss
[Docs. ## 21, 22, 23]. In summary, the Court concludes that Counts One through Four
against the State Agency Defendants must be dismissed for lack of subject matter
jurisdiction because the state agencies are “arms of the state” and entitled to Eleventh
Amendment Immunity. Counts One through Five brought by the associational plaintiffs are
also dismissed for lack of jurisdiction because these plaintiffs lack associational standing.
The individual counts must be dismissed for failure to state a claim. Count One,
alleging a violation of the Free Exercise Clause, is dismissed because mandatory
vaccination as a condition to school enrollment does not violate the Free Exercise Clause.
However, even if P.A. 21-6 was not foreclosed by Supreme Court and Second Circuit
precedent, it is constitutional because it is a neutral law of general applicability which is
rationally related to a legitimate state purpose. Plaintiffs’ second count, alleging a violation
of the right to privacy and medical freedom, fails to state a claim because there is no
overriding privacy right to decline vaccination. Count Three, alleging a violation of the
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Equal Protection Clause, fails to state a claim because Plaintiffs do not plead facts that
overcome the rationality of the state’s classification. Count Four is dismissed because
Plaintiffs allege a violation of the right to childrearing that is coextensive with its dismissed
Free Exercise Clause count. Finally, Count Five, brought under IDEA, is dismissed because
Plaintiffs failed to plead that they receive special education under IDEA.
I.
Facts Alleged
A. Connecticut Public Act No. 21-6
Connecticut law requires students to receive immunization against certain
communicable diseases before enrolling in school. Conn. Gen. Stat. § 10-204a(a).1 Prior to
April 28, 2021, students could apply for medical and religious exemptions to the
immunization requirement. (Compl. ¶¶ 15-18; see Pl.’s Opp’n at 2-3). Under P.A. 21-6,
students in kindergarten through grade twelve who had already received a religious
exemption continue to be exempt from the vaccination requirement.2 (Compl. ¶ 17.)
1
§ 10-204a(a) provides that:
[e]ach local or regional board of education, or similar body governing a
nonpublic school or schools, shall require each child to be protected by
adequate immunization against diphtheria, pertussis, tetanus, poliomyelitis,
measles, mumps, rubella, haemophilus influenzae type B and any other
vaccine required by the schedule for active immunization adopted pursuant
to section 19a-7f before being permitted to enroll in any program operated
by a public or nonpublic school under its jurisdiction. Before being permitted
to enter seventh grade, a child shall receive a second immunization against
measles.
2
§ 10-204a(b) provides that:
The immunization requirements provided for in subsection (a) of this section
shall not apply to any child who is enrolled in kindergarten through twelfth
grade on or before April 28, 2021 if such child presented a statement, prior
to April 28, 2021, from the parents or guardian of such child that such
immunization is contrary to the religious beliefs of such child or the parents
or guardian of such child, and such statement was acknowledged, in
accordance with the provisions of sections 1-32, 1-34 and 1-35, by (1) a
judge of a court of record or a family support magistrate, (2) a clerk or
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Children in preschool or prekindergarten programs who previously claimed a religious
exemption, however, must be vaccinated by September 1, 2022 or two weeks after
transferring to another school program, whichever is later. (Id.; Ex. B, Compl., at 5.) No
religious exemption is available to them. (Compl. ¶ 17.)
B. Vaccinations
Plaintiffs allege that there are ten identified vaccines that contain cell lines derived
from aborted fetal cells. (Id. ¶¶ 20-23.) They further allege that vaccinations are harmful
because the “presence of very small amounts of human fetal cells and DNA in the human
blood can create a very strong autoimmune reaction in a person by which his [sic] body
turns against itself and starts killing its own cells and tissues.” (Id. ¶ 24.) They also assert
that certain vaccines include animal cells and pork derivatives. (Id. ¶¶ 34, 39.)
C. The Parties
This case is brought by five plaintiffs: two associations and three individuals. The
first associational plaintiff, We the Patriots USA, Inc. (“WTP”), is a nonprofit charity that is
“dedicated to promoting constitutional rights and other freedoms” and seeks to “advanc[e]
religious freedom, medical freedom, parental rights, and educational freedom for all.” (Id.
¶ 2.) WTP states that “[a] significant number of its members are Connecticut parents
affected by matters complained of herein.” (Id.) The second associational plaintiff, CT
Freedom Alliance, LLC (“Alliance”), is a public interest organization similarly committed to
“advocating for religious freedom, medical freedom, parental rights, and educational
freedom among others.” (Id. ¶ 3.) Alliance asserts that “[m]ost of its members are parents
affected by the legislation complained of herein.” (Id.) Neither Associational Plaintiff
identifies any individual member by name. (See id. ¶¶ 2-3.)
deputy clerk of a court having a seal, (3) a town clerk, (4) a notary public, (5)
a justice of the peace, (6) an attorney admitted to the bar of this state, or (7)
notwithstanding any provision of chapter 6, a school nurse.
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Plaintiff Costantina Lora is a Connecticut resident with a child enrolled in preschool
in Bethel, Connecticut. (Id. ¶ 25.) Her child previously received a religious exemption but
will need to be vaccinated to enroll in kindergarten under P.A. 21-6. (Id. ¶ 30.) As a Greek
Orthodox Christian, she objects to vaccinating her children because vaccines contain
“aborted fetal cells,” and she believes that injecting herself and her children with these cells
“would constitute participation in what she feels was an act of intentional, premeditated
murder.” (Id. ¶ 27.) She also objects to the presence of cells from other animals and
chemicals in vaccines, as she believes this is “morally wrong.” (Id.) Further, she “personally
hold[s] a general religious belief that harming children is morally wrong” and believes that
vaccinating her children “would harm them, thus rendering it wrong.” (Id. ¶ 28.)
Plaintiff Miriam Hidalgo is a Connecticut resident whose children will be subject to
the vaccination requirement in Glastonbury, Connecticut. (Id. ¶ 31.) She is Catholic and
believes that the use of “aborted fetal cells” in vaccines constitutes murder and violates her
family’s religious beliefs. (Id. ¶¶ 32-33.) She also objects to vaccines that contain the “cells
of other animals,” because as part of her religion, she raises her children as vegans. (Id. ¶
34.)
Plaintiff Asma Elidrissi is a Connecticut resident with two children subject to P.A.
21-6’s vaccination requirement. (Id. ¶ 36.) One child “has not fully completed registration
for kindergarten” and the other “will be eligible for preschool in the fall of 2021.” (Id.)
Plaintiff Elidrissi is Muslim and alleges three religious objections to vaccines. (Id. ¶ 37.)
First, she believes that vaccines constitute participation in murder because vaccines
contain “aborted fetal cells.” (Id. ¶ 38.) Next, she alleges that there are pork derivatives in
vaccines, and she abstains from pork as a part of her religion. (Id. ¶ 39.) Finally, she does
not harm children on religious and moral grounds and alleges that vaccines harm children.
(Id. ¶ 40.) Plaintiff Elidrissi also states that after her son was given the measles, mumps,
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and rubella vaccination, he “suffer[ed] serious symptoms and ultimately a speech and
learning disorder for which he now receives special services.” (Id.)
This case is brought against six defendants: three state agencies and three local
boards of education. Defendants Connecticut Office of Early Childhood Development,
Connecticut State Department of Education, and Connecticut Department of Public Health
(“State Agency Defendants”) are state agencies and move to dismiss all claims by the
associational Plaintiffs and Counts One through Four under Rule 12(b)(1) for lack of
subject matter jurisdiction and Counts One through Five under Rule 12(b)(6) for failure to
state a claim. (State Agency Defs.’ Mot. to Dismiss [Doc. # 22] at 1.) Defendants Bethel and
Stamford Boards of Education join this motion [Doc. #23]. Defendant Glastonbury Board of
Education moves to dismiss Counts One through Four, which are the counts directed
against it [Doc. # 21].3
II.
Legal Standard
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of claims over which a
court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Where a court does not have
statutory or constitutional power to adjudicate a claim, it lacks subject matter jurisdiction.
Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). “When considering a
motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the
complaint as true and draw all reasonable inferences in favor of plaintiff.” Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir. 2000). The party asserting subject matter jurisdiction must prove
The three school boards submit memoranda mirroring the State Agency Defendants
without certain defenses. Defendants Bethel Board of Education and Stamford Board of
Education do not assert Eleventh Amendment immunity [Doc. # 23]. Defendant
Glastonbury Board of Education neither asserts Eleventh Amendment immunity nor
responds to Count Five. (Mem. of Law in Supp. of Def. Glastonbury Board of Education’s
Mot. to Dismiss [Doc. # 21-1] at 1.) Because the school boards’ memoranda mirror the State
Agency Defendants’ memorandum, the Court cites to the State Agency Defendants’
memorandum (“Defs.’ Mem.”).
3
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its existence by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000).
Under Rule 12(b)(6), the Court must determine whether the plaintiff has stated a
legally cognizable claim by making allegations that, if true, would plausibly show that the
plaintiff is entitled to relief, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007),
assuming all factual allegations in the complaint as true and drawing all reasonable
inferences in the plaintiff's favor, see Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015).
However, this principle does not apply to “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). Because “only a complaint that states a plausible
claim for relief survives a motion to dismiss,” Iqbal, 556 U.S. at 679, a complaint must
contain “factual amplification . . . to render a claim plausible,” Arista Records LLC v. Doe 3,
604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.
2009)), and a complaint that only “offers ‘labels and conclusions’” or “naked assertions
devoid of further factual enhancement” will not survive. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555, 557).
III.
Discussion
A. Eleventh Amendment Immunity
The State Agency Defendants seek to dismiss Counts One through Four against
them, on grounds that they are shielded by sovereign immunity under the Eleventh
Amendment as “arms of the state.” (Defs.’ Mem. at 6.)
The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by citizens or subjects of any
foreign state.” U.S. Const. amend. XI. Eleventh amendment immunity was extended to suits
brought against states by citizens of the same state, see Papasan v. Allain, 478 U.S. 265, 276
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(1986); Hans v. Louisiana, 134 U.S. 1, 10 (1890), and also includes a “state entity that is an
‘arm of the [s]tate,’” In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007). An agency is
the arm of the state, and entitled to Eleventh Amendment immunity “where, for practical
purposes, the agency is the alter ego of the state and the state is the real party in interest.”
Santiago v. N.Y. State Dept. of Corr. Servs., 945 F.2d 25, 28 n.1 (2d Cir. 1991)). The Eleventh
Amendment, however, is not without exception. Congress may abrogate a state’s immunity
by statute, a state may waive its immunity, or a state official may be sued in his or her
official capacity under the Ex Parte Young doctrine. In re Deposit Ins. Agency, 482 F.3d at
617.
The State Agency Defendants contend that the exceptions to sovereign immunity do
not apply to Counts One through Four, because Congress has not abrogated the state’s
immunity, Connecticut has not consented to a waiver of immunity, and Ex Parte Young is
inapplicable to state agencies. (Defs.’ Mem. at 7.) While Plaintiffs “concede that Supreme
Court precedent supports the State Agency Defendants’ position and that the Court is
bound to follow those positions,” they nonetheless argue that the State Agency Defendants
are not immune based upon a strict reading of the text of Eleventh Amendment. (Pls.’ Opp’n
at 8-9.)4
Because a state agency is considered an “arm of the state” and is entitled to
immunity, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984), and this
case does not present an exception to the state’s Eleventh Amendment immunity, the State
Agency Defendants are protected under the Eleventh Amendment and are immune from
suit in Counts One through Four. Thus, these counts against Defendants Connecticut Office
of Early Childhood Development, Connecticut State Department of Education, and
In the alternative, Plaintiffs request leave to amend their complaint to name the agency
officials as defendants. (Pls.’ Opp’n at 9.)
4
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Connecticut Department of Public Health are dismissed for lack of subject matter
jurisdiction.5
B. Standing
Defendants argue that Plaintiffs WTP and Alliance fail to “make specific allegations
establishing that at least one identified member had suffered or would suffer harm.”
Rodriguez v. Winski, 444 F. Supp. 3d 488, 496-97 (S.D.N.Y. 2020) (internal citations
omitted).6 They view the allegations that “[a] significant number of its members are
Connecticut parents affected by the matters complained of herein,” and “[m]ost of its
members are parents affected by the legislation complained of herein” as insufficiently
specific to confer standing to the associations. (See Defs.’ Mem. at 9.) Plaintiffs concede that
they did not specifically identify any members of their organizations that had standing in
their complaint. (Pls.’ Opp’n at 10.) They argue, but do not plead, that the three individual
Plaintiffs, who each have individual standing to sue, are members of both WTP and
Alliance, which they claim is implied in their complaint. (Id. (“It takes no great leap of logic
for the Court to conclude, as implied, that Plaintiffs Lora, Hidalgo, and Elidrissi are
members of both We The Patriots USA, Inc. and CT Freedom Alliance, LLC.”).)
Standing requires an “actual or threatened injury in fact that is fairly traceable to the
alleged illegal action and likely to be redressed by a favorable court decision.” Lesbian &
Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (quoting Spann v. Colonial Village,
Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). An association may sue on behalf of its members
The Court denies Plaintiffs’ request for leave to amend their Complaint to name the
agency officials as defendants. The claim of Eleventh Amendment immunity was identified
at the parties’ pre-filing conference, and Plaintiffs declined the offered opportunity to
amend their Complaint in anticipation of Defendants’ motions to dismiss on this basis.
Moreover, as discussed infra, since all counts will be dismissed, adding individual state
officials in their official capacities would be futile.
5
Defendants also argue that the associational Plaintiffs do not have standing to sue on their
own behalf because they do not have their own redressable injury. (Defs.’ Mem. at 8 n.9.)
This is not rebutted by Plaintiffs. (See Pls.’ Opp’n at 9-10.)
6
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when it establishes that “(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
343 (1977); see also Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004).
There is disagreement in the Second Circuit as to whether the first prong of the Hunt
doctrine requires an association to identify, by name, a member with standing in its
complaint. Rodriguez, 444. F. Supp. 3d at 496 n.3 (discussing split in the Second Circuit);
compare Pen Am. Ctr., Inc. v. Trump, 448 F. Supp. 3d 309, 320 (2d Cir. 2020) (“Unless ‘all the
members of an organization are affected by the challenged activity,’ Plaintiff must name at
least one of its ‘affected members’ to establish associational standing at the pleading stage.”
(internal quotations and citations omitted)), with Nat. Res. Def. Council, Inc. v. Wheeler, 367
F. Supp. 3d 219, 227 (S.D.N.Y. 2019) (“While the organization need not identify any
member with standing in his or her own right by name, it must nevertheless establish that
‘at least one identified member ha[s] suffered or would suffer harm.’” (internal quotations
and citations omitted)). However, at a minimum, a plaintiff must plead “facts that
affirmatively and plausibly suggest” that an identified member has suffered harm. Faculty v.
N.Y. Univ., 11 F.4th 68, 75-76 (2d Cir. 2021) (internal quotations and citations omitted).
In Faculty v. New York University, the Second Circuit affirmed the dismissal of
Plaintiff-Appellant Faculty, Alumni, and Students Opposed to Racial Preferences’
(“FASORP”) complaint for lack of standing because the association failed to demonstrate
that its individual members had standing to sue. 11 F.4th at 71. There, the association
pleaded that its members were subject to race and sex discrimination because New York
University gave preference to “women and racial minorities” when selecting articles for its
Law Review, an editorial board for its Law Review, and faculty for its Law School. Id. at 73.
FASORP alleged that its members included “faculty members or legal scholars who have
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submitted articles to the Law Review in the past, and who intend to continue submitting
their scholarship to the Law Review in the future” and “individuals who have sought and
applied for entry-level or lateral teaching positions at the Law School and intend to do so
again the future, or remain potential candidates.” Id. The Second Circuit concluded that
such allegations were “plainly insufficient to show that FASORP's members have suffered
the requisite harm” and noted that the associational plaintiff could have been more specific,
asking: “When did FASORP's members submit articles or apply for jobs at NYU? Have those
members drafted articles they intend to submit? If so, when do they plan to submit?” Id. at
76.
Here, Plaintiffs undeniably do not provide the names of individuals with standing in
their complaint, and while Plaintiffs ask the Court to infer that three named individuals are
members of the associations, “[i]t is the responsibility of the complainant clearly to allege
facts demonstrating that he [or she] is a proper party to invoke judicial resolution of the
dispute,” Warth v. Seldin, 422 U.S. 490, 490 (1975), and “[i]t is a long-settled principle that
standing cannot be inferred argumentatively from averments in the pleadings,” Steinberger
v. Lefkowitz, 634 F. App'x 10, 12 (2d Cir. 2015) (quoting FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 231 (1990)). Further, the allegations that “[a] significant number of its members
are Connecticut parents affected by the matters complained of herein,” and “[m]ost of its
members are parents affected by the legislation complained of herein” are insufficient to
demonstrate that identified members were subject to harm. See Faculty, 11 F.4th at 76. The
Associational Plaintiffs do not detail, for example, the school districts or grade level of these
members’ children or whether these members have previously sought a religious
exemption. Further, the Associational Plaintiffs do not provide facts detailing how their
members would be “affected by the legislation” such that they would suffer harm.
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Since the Associational Plaintiffs have failed to plead facts demonstrating that at
least one identified member had or would suffer harm, they lack standing and Counts One
through Five brought by them are dismissed for lack of jurisdiction.
C. Count One: Free Exercise Clause
Individual Plaintiffs allege that the P.A. 21-6 violates their right to free exercise of
religion under the First Amendment as the Act provides a medical exemption to its
vaccination requirement without providing a religious exemption. (Compl. ¶¶ 42-51.)
Plaintiffs argue that the failure to provide a religious exemption “forces parents to either
renounce their religious beliefs and vaccinate their children or homeschool their
children—something that many parents cannot do—thus depriving them of any education
opportunities.” (Compl. ¶ 50.)
The First Amendment, applicable to the states through the Fourteenth Amendment,
“declares that Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.” Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); U.S.
Const. amend. I. It “embraces two concepts”: the “freedom to believe” and the “freedom to
act.” Cantwell, 310 U.S. at 303. While the freedom to believe is “absolute,” the freedom to
act “cannot be.” Id. at 304; see also Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990) (“[T]he
right of free exercise does not relieve an individual of the obligation to comply with a ‘valid
and neutral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes.)’” (citations omitted)).
There are two standards of review to a challenge based on the Free Exercise
Clause—rational basis and strict scrutiny. Cent. Rabbinical Cong. of the United States &
Canada v. N.Y. City Dep’t of Health & Mental Hygiene, 763 F.3d 183, 186 n.2 (2d Cir. 2014).
Under rational basis review, “legislation is presumed to be valid and will be sustained if the
[burden imposed] by the statute is rationally related to a legitimate state interest.” Id.
(quoting Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007)). Strict
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scrutiny requires that the law “be justified by a compelling government interest and . . . be
narrowly tailored to advance that interest.” Id. (quoting Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)).
Defendants contend that the Court does not need to decide which level of scrutiny to
use as Plaintiffs’ Free Exercise claim is foreclosed by Second Circuit and Supreme Court
precedent. (Defs.’ Mem. at 11.) They alternatively argue that P.A. 21-6 survives both
rational basis and strict scrutiny review. (Id.) Plaintiffs maintain that there is no “public
health exception to the First Amendment,” and thus, P.A. 21-6 must be reviewed under
strict scrutiny. (Pls.’ Opp’n at 11-23.)
1. Second Circuit and Supreme Court Precedent
Over a century ago, the United States Supreme Court in Jacobson v. Massachusetts
rejected a Fourteenth Amendment challenge to Massachusetts’s mandatory vaccination
law. 197 U.S. 11, 12 (1905). While Jacobson did not address the First Amendment, which
had not yet been applied to the states, the Supreme Court concluded that the law “did not
invade[] any right secured by the Federal Constitution.” Jacobson, 197 U.S. at 38. The
Supreme Court later instructed that Jacobson “settled that it is within the police power of a
state to provide for compulsory vaccination.” Zucht v. King, 260 U.S. 174, 176 (1922).
Subsequently, when the Supreme Court was called to decide if a child labor law violated the
First Amendment in Prince v. Massachusetts, it considered the limitations of the rights of
religion and parenthood, and stated in dicta that a parent could not “claim freedom from
compulsory vaccination for the child more than for himself on religious grounds.” 321 U.S.
158, 166 (1944) (citing Jacobson, 197 U.S. at 25).
With this jurisprudential backdrop, the Second Circuit affirmed the dismissal of a
Free Exercise challenge to a New York statute requiring students to be vaccinated to attend
public school and a regulation which allowed unvaccinated students to be temporarily
excluded from school during an outbreak of a “vaccine-preventable disease.” Phillips, 775
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F.3d at 540-41. The plaintiffs in Phillips argued that the statute and regulation infringed on
their free exercise of religion as Catholics. Id. at 541-42. Analyzing Jacobson and Prince, the
Second Circuit concluded that “mandatory vaccination as a condition for admission to
school does not violate the Free Exercise Clause.” Id. at 543. While New York’s mandatory
vaccination law contained both religious and medical exemptions, the court noted that New
York law goes “beyond what the Constitution requires by allowing an exemption for
parents with genuine and sincere religious beliefs.” Id. As the state could bar the
unvaccinated “children from school altogether,” the Second Circuit concluded that a
“limited exclusion during an outbreak of a vaccine-preventable disease” was constitutional.
Id.
Defendants argue that federal courts have “uniformly rejected free exercise
challenges to mandatory school vaccination laws.” (Defs.’ Mem. at 13); see, e.g., Workman v.
Mingo Cty. Bd. of Educ., 419 F. App’x 348, 353 (4th Cir. 2011) (holding that district court did
not err in granting summary judgment because West Virginia’s mandatory vaccination
program for school admission did not violate the Free Exercise Clause under strict
scrutiny); Whitlow v. Cal. Dep’t of Educ., 203 F. Supp. 3d 1079, 1085-87 (S.D. Cal. 2016)
(denying a motion for a preliminary injunction because the parents challenging a bill that
repealed a religious exemption to the state’s vaccination requirement for new school
children were unlikely to succeed on the merits of their claim that the bill violated the Free
Exercise Clause, the Equal Protection Clause, or the right to education under the California
Constitution); W.D. v. Rockland Cnty., 521 F. Supp. 3d 358, 409-10 (S.D.N.Y. 2021) (granting
the defendants’ motion for summary judgment and finding as a matter of law that
excluding vaccinated children from school during a measles outbreak did not violate the
Free Exercise Clause). Defendants urge dismissal of Plaintiffs’ claims for failure to state a
claim under the Free Exercise clause.
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Plaintiffs present three arguments on why this precedent does not foreclose their
Free Exercise claim. (Pls.’ Opp’n at 11.) They assert that “even during a public health
emergency the First Amendment’s prohibition on the attachment of special disabilities to
religion still applies in full force,” citing Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.
63 (2020) and Harvest Rock Church, Inc. v. Newson, 141 S. Ct. 889 (2020). (Id.) Next, they
view Jacobson and Zucht as distinguishable because they did not involve the Free Exercise
Clause and the decision in Prince was limited to the facts of the case. (Id. (citing Roman
Catholic Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring).) Finally, to the extent
that Jacobson does establish that vaccine mandates are permissible under the state’s police
power, Plaintiffs conclude that the “Second Circuit’s reliance on it and Zucht in Phillips
errs,” and this Court should not follow Phillips. (Id.)
In Roman Catholic Diocese of Brooklyn, the Supreme Court enjoined the Governor of
New York from enforcing his “severe restrictions on the applicants’ religious services”
where an Executive Order limited attendance at religious services in certain areas of New
York during the COVID-19 pandemic while not imposing the same restrictions on secular
businesses. 141 S. Ct. at 66, 69. Concluding that the restrictions were neither “neutral” nor
of “generally applicability,” the Supreme Court determined that the applicants were likely
to succeed on the merits of their claim under strict scrutiny because “other less restrictive
rules could be adopted.” Id. at 67. Justice Neil Gorsuch concurred, positing that “Jacobson
hardly supports cutting the Constitution loose during a pandemic. That decision involved
an entirely different mode of analysis, an entirely different right, and an entirely different
kind of restriction.” Id. at 70. Similarly, the Supreme Court in Harvest Rock Church, Inc. v.
Newson granted injunctive relief where the Governor of California restricted attendance at
in-person worship services during the COVID-19 pandemic and remanded the case for
“further consideration in light of Roman Catholic Diocese of Brooklyn.” 141 S. Ct. at 889.
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This Court recognizes that these cases reaffirm the proposition that when
considering public health, “the Constitution cannot be put away and forgotten.” Roman
Cath. Diocese of Brooklyn, 141 S. Ct. at 68; see Harvest Rock Church, Inc., 141 S. Ct. at 889.
While Plaintiffs argue that “a public health interest does not swallow the First
Amendment,” (Pls.’ Opp’n at 11), Plaintiffs miss the point. Roman Catholic Diocese of
Brooklyn enjoined officials from enforcing an Executive Order which “single[d] out houses
of worship for especially harsh treatment” and failed to narrowly tailor its requirements,
141 S. Ct. at 65-67, but it does not stand for Plaintiffs’ broad proposition that there is no
“public health exception to the First Amendment.” (Pls.’ Opp’n at 11.) Rather, states cannot
violate the First Amendment, see Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 68, and
“mandatory vaccination as a condition for admission to school does not violate the Free
Exercise Clause.” Phillips, 775 F.3d at 543.7
The Court further acknowledges that Jacobson and Zucht do not involve challenges
under the Free Exercise Clause, see id. (“Jacobson does not specifically control [Plaintiffs’]
free exercise claim” as it did not involve a First Amendment challenge); Zucht, 260 U.S. at
176 (San Antonio’s vaccine mandate did not violate the Due Process and Equal Protection
Clauses of the Fourteenth Amendment), and that Prince was expressly limited to its facts,
Prince, 321 U.S. at 171 (“Our ruling does not extend beyond the facts the case presents.”).
However, as viewed by the Second Circuit, the reasoning in these cases—despite their
limitations—suggests that vaccination as a condition of school admission does not violate
the Free Exercise clause because they are “consonant with [Supreme Court and Second
Circuit] precedent holding that ‘a law that is neutral and of general applicability need not
be justified by a compelling governmental interest even if the law has the incidental effect
Professor John Fabian Witt documents a “long tradition of judicial decisions upholding
state authority to fight pandemics” in American Contagions: Epidemics and the Law from
Smallpox to COVID-19. See John Fabian Witt, American Contagions: Epidemics and the Law
from Smallpox to COVID-19 60 (2020).
7
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of burdening a particular religious practice.’” Phillips, 775 F.3d at 543 (quoting Church of
the Lukumi Babalu Aye, Inc., 508 U.S. at 531); see also Workman, 419 F. App'x at 353-54.
In viewing Phillips as wrongly decided, Plaintiffs set out a history of the Fourteenth
Amendment which they argue demonstrates that Jacobson cannot be squared with modern
constitutional jurisprudence. (Pl.’s Opp’n at 15.) As an example, Plaintiffs examine
Lawrence v. Texas, 539 U.S. 558 (2003), which held that the criminalization of same-sex
sexual conduct was unconstitutional, and argue that if Jacobson were controlling law, a
state would be allowed to “criminalize homosexual intimacy” to curb the spread of
HIV/AIDs. (Id.)
However, Plaintiffs’ arguments do not provide a basis for the Court to ignore Second
Circuit precedent. In another case brought by WTP, the Second Circuit considered
challenges to an emergency rule requiring healthcare workers to receive a COVID-19
vaccine with no religious exemptions. We the Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d.
Cir. 2021). In denying their application for a preliminary injunction, the Second Circuit
stated that WTP’s “alternative contention that Jacobson and Phillips have been implicitly
overruled by the Supreme Court likewise finds no support in caselaw.” Id. at 293.8 The
Second Circuit in Phillips was certainly aware of the evolution of the Fourteenth
Amendment and nonetheless concluded that mandatory vaccination as a condition to
school enrollment did not violate the Free Exercise Clause based on Jacobson and Prince.
Phillips, 775 F.3d at 543. Because religious exemptions to vaccine mandates “go[] beyond
what the Constitution requires,” see id., Connecticut’s decision to eliminate religious
exemptions does not alter this conclusion. Accordingly, Plaintiffs fail to state a claim for
relief under the Free Exercise Clause. Id. However, even if Plaintiffs’ claim was not
foreclosed, P.A. 21-6 would only be subject to rational basis review, which it survives.
We the Patriots USA’s application for injunctive relief in this case was subsequently
denied by the Supreme Court. We the Patriots USA, Inc. v. Hochul, --- S. Ct. ---, 2021 WL
5873122 (2021).
8
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2. Rational Basis
A court will sustain a “religiously neutral and generally applicable law [that]
incidentally burdens free exercise rights” if it is “rationally related to a legitimate
government interest.” Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir. 2021) (affirming the denial
of a preliminary injunction because petitioners were unlikely to succeed on the merits of
their claim that Maine’s mandatory vaccination law for healthcare workers, which did not
offer a religious or philosophical exemption, violated the Free Exercise clause). Plaintiffs
contend that Supreme Court cases from this past term compel the conclusion that P.A. 21-6
is not “generally applicable” after Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) and
Tandon v. Newsom, 141 S. Ct. 1294 (2021).
a. Neutrality
A law is neutral when it does not target religion or religious practices. Cent.
Rabbinical Cong. of the United States, 763 F.3d at 193; Fulton, 141 S. Ct. at 1877
(“Government fails to act neutrally when it proceeds in a manner intolerant of religious
beliefs or restricts practices because of their religious nature.”).
By its terms, P.A. 21-6 does not target religion or “single out [religion] for especially
harsh treatment.” Roman Catholic Diocese of Brooklyn, 141 S. Ct. 63. Instead, the law
requires all students to receive common vaccinations, exempting those with medical
exemptions and those in grades kindergarten through twelve with existing religious
exemptions. “The absence of a religious exception to a law does not, on its own, establish
non-neutrality such that a religious exception is constitutionally required.” See We the
Patriots USA, Inc., 17 F.4th at 282 (finding that a challenge to an emergency rule requiring
healthcare workers to receive the COVID-19 vaccine without religious exemption was
unlikely to succeed on the merits because the rule was neutral and generally applicable).
Plaintiffs have not advanced an argument that P.A. 21-6 was motivated by any religious
animus and the legislative history suggests, as Defendants argue, that the enactment of this
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law was based upon declining student vaccination rates. See Conn. H.R. (Apr. 19, 2019)
(statement of Repr. Steinberg) (“The key data describe a clear trend over the past decade
towards higher levels of religious exemptions resulting in as many as a hundred schools at
any given time with vaccination rates below the community immunity threshold.”); see also
Conn. S. (Apr. 27, 2021) (statement of Senator Daugherty Abrams) (“We have over 30
schools that have religious exemption rates over 10%, some as high as 25%. So when you
hear that our vaccination rates in Connecticut are high, remember that those figures are
overall and do not reflect the significant vulnerability present in our schools and
communities.”)9 (Defs.’ Mem. at 17-18.) As such, P.A. 21-6 is neutral.
b. General Applicability
Plaintiffs contend that the law cannot be considered “generally applicable” as it
“provides for secular exemptions (medical) from its vaccination mandate while completely
eliminating religious exemption.” (Pls.’ Opp’n at 18.) They argue that medical exemptions
and religious exemptions are “comparable” under the First Amendment and predict that
the law invites the state to provide impermissible individualized exemptions under Fulton.
(Pl.’s Opp’n at 18.)
A law is generally applicable when it does not selectively “impose burdens only on
conduct motivated by religious belief.” Church of the Lukumi Babalu Aye, Inc., 508 U.S. at
543. If a law “treat[s] any comparable secular activity more favorably than religious
exercise,” then it is not generally applicable. Tandon, 141 S. Ct. at 1296. Further, a law is not
generally applicable if it “‘invite[s]’ the government to consider the particular reasons for a
person’s conduct by providing ‘a mechanism for individualized exemptions.’” Fulton, 141 S.
Ct. at 1877 (quoting Smith, 494 U.S. at 884).
In fact, Plaintiffs have not offered a clear argument on how the law is not neutral in any
respect. Instead, they have conflated their analysis of neutrality and general applicability.
9
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i.
Comparable Secular Activity
In Tandon v. Newsom, the Supreme Court reasoned that “whether two activities are
comparable for purposes of the Free Exercise Clause must be judged against the asserted
government interest that justifies the regulation at issue,” and “[c]omparability is
concerned with the risks various activities pose.” 141 S. Ct. at 1296. Additionally, the
Supreme Court held in Smith that “a law criminalizing controlled substance possession was
deemed generally applicable even though it contained an exception for substances
prescribed for medical purposes.” We the Patriots, Inc., 17 F.4th at 285 (citing Smith, 494
U.S. at 874, 878-82).
At oral argument, the Defendants maintained that Connecticut’s interest in P.A. 21-6
was to “protect the health and safety of Connecticut’s schoolchildren.” (See Defs.’ Mem. at
20.) They maintain that medical and religious exemptions differ because medical
exemptions further the state’s interest in health and safety while religious exemptions
undercut that same interest. Plaintiffs contend that the Defendants’ interest is drawn too
broadly, and instead, the legislative history suggests that the asserted interest is
“preventing the spread of contagious disease.” (Pl.’s Opp’n at 19.) With this narrower
interest, Plaintiffs assert that the medical exemptions undermine Connecticut’s statutory
purpose, as an individual unvaccinated for religious reasons and an individual
unvaccinated for medical reasons pose the same risk. (Id.) In enacting P.A. 21-6, however,
the state legislators identified that the purpose of this law is to protect community health10
and Plaintiffs make no showing that this interest is pretextual or unwarranted.
See e.g., Conn. H.R. (Apr. 19, 2019) (statement of Repr. Steinberg) (“Vaccine hesitancy is
becoming a direct and serious threat to the public health. It demands a proactive approach,
not a reactive one dependent on quarantines or contact tracing. We've seen how that's
gone. We need to act and act before we have an epidemic, an epidemic that we can prevent.
That's what we're here for today.”); see also Conn. S. (Apr. 27, 2021) (statement of Senator
Daugherty Abrams) (“Why this Bill now? It is our obligation to protect the public health.).
10
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Plaintiffs’ reliance on Tandon does not lead this Court to a different conclusion. In
Tandon, the Supreme Court concluded that the petitioners were likely to succeed on their
Free Exercise challenge to California’s restrictions on the number of households that could
gather for in-home religious worship. 141 S. Ct. at 1297-98. California did not impose
similar restrictions on secular activities. Id. Tandon, however, “did not involve a one-to-one
comparison of the transmission risk posed by an individual worshiper and, for example, an
individual grocery shopper,” and instead looked at the risk of groups. We the Patriots, Inc.,
17 F.4th at 287; see Tandon, 141 S. Ct. at 1297. While “[c]omparability is concerned with
the risks various activities pose,” here, when considering the risk of the group, religious
exemptions and medical exemptions are not comparable. As data attached to Plaintiffs’
complaint show, 2.3% of kindergarteners have a religious exemption to the Connecticut’s
vaccine requirements while only 0.2% of kindergarteners have a medical exemption. (Ex. D,
Pl.’s Compl. [Doc. # 1-4] at 3-5.) “We doubt that, as an epidemiological matter, the number
of people seeking exemptions is somehow excluded from the factors that the [s]tate must
take into account in assessing the relative risks to the health of the [impacted community]
and the efficacy of its vaccination strategy in actually preventing the spread of the disease.”
We the Patriots, Inc., 17 F.4th at 287.
Further, medical exemptions are not comparable to religious exemptions when
considering the “interest that justifies the regulation at issue.” Tandon, 141 S. Ct. at 1296.
The state has an interest in protecting the health of Connecticut’s schoolchildren. Medical
exemptions further this interest by ensuring that children are not harmed by vaccines that
are contraindicated. See Does 1-6, 16 F.4th at 31 (concluding that a medical exemption to a
vaccine mandate for healthcare workers would not undermine Maine’s interests in
protecting the health of healthcare professionals, those who cannot be vaccinated, and of
all Mainers because “providing healthcare workers with medically contraindicated
vaccines would threaten the health of those workers and thus compromise both their own
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health and their ability to provide care”). Connecticut has chosen to protect the safety of
schoolchildren by requiring all students who may be safely vaccinated to be vaccinated,
exempting those in grades kindergarten through twelve with existing religious exemptions,
and this same interest is not advanced by an overarching religious exemption which
jeopardizes the community immunity.
ii.
Individualized Exemptions
“General applicability may be absent when a law provides ‘a mechanism for
individualized exemptions,’ because it creates the risk that administrators will use their
discretion to exempt individuals from complying with the law for secular reasons, but not
religious reasons.” We the Patriots, Inc., 17 F.4th at 288 (quoting Smith, 494 U.S. at 884)
(citations omitted); see also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 542 (“All laws
are selective to some extent, but categories of selection are of paramount concern when a
law has the incidental effect of burdening religious practice.”). In Smith, the Court
considered an exemption that was granted for “good cause” as an example of such
“individualized exception.” 494 U.S. at 884. Similarly, in Fulton, a city official was able to
create exemptions in his or her “own discretion,” which was violative of the general
applicability framework. Fulton, 141 S. Ct. at 1878-79.
P.A. 21-6 allows individuals to receive medical exemptions, but this categorical
exemption is not a “mechanism for individualized exemptions.” Smith, 494 U.S. at 884. The
Act, instead, “provides for an objectively defined category of people to whom the vaccine
requirement does not apply,” We the Patriots, Inc., 17 F.4th at 289, and requires a certificate
from a “physician, physician assistant or advanced practice registered nurse stating that in
the opinion of such physician, physician assistant or advanced practice registered nurse
such immunization is medically contraindicated because of the physical condition of such
child.” P.A. 21-6 § 1(a). “[N]o case of the Supreme Court holds that a single objective
exemption renders a rule not generally applicable.” Does 1-6, 16 F.4th at 30. P.A. 21-6
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affords government officials no discretion11 to grant or deny exemptions and the existence
of a medical exemption thus does not render the law not generally applicable. See We the
Patriots, Inc., 17 F.4th at 289-90.
Plaintiffs’ reliance on Fraternal Order of Police Newark Lodge No. 12 v. City of
Newark, 170 F.3d 359 (3d Cir. 1999) is unavailing. There, the court determined that the
police department’s regulation on beards, which provided medical but not religious
exemptions to its policy on facial hair, was subject to heightened scrutiny. Id. at 365-66.
The police department’s interest was in a “uniform appearance,” and the decision “to allow
officers to wear beards for medical reasons undoubtedly undermine[d] the Department's
interest in fostering a uniform appearance through its ‘no-beard’ policy.” Id. at 366. Here,
Connecticut’s interest in P.A. 21-6 is to “protect the health and safety of Connecticut’s
schoolchildren.” (Defs.’ Mem. at 20.) The decision to exempt individuals from the vaccine
requirement for medical reasons does not undermine its interest, as Connecticut would not
be protecting the health and safety of schoolchildren if it required these children to
undergo medically contradicted treatment. See Does 1-6, 16 F.4th at 34 (concluding that the
medical exemption in Fraternal Order was distinguishable from Maine’s vaccine mandate
with a medical exemption because “medical exemptions support Maine's public health
interests” by not forcing its healthcare workers to undergo contraindicated medical
treatment). Because medical exemptions do not undermine Connecticut’s interest,
Fraternal Order is unpersuasive authority for Plaintiffs’ argument.
c. Plaintiffs’ Alternative Arguments
Contending that rational basis review cannot apply to P.A. 21-6, Plaintiffs raise two
alternative arguments. First, they opine that the Connecticut vaccine requirement presents
a “hybrid-rights situation” under Smith which forestalls the application of rational basis
Those that present a certificate from a physician, physician assistant or advanced
practice registered nurse stating that a vaccine is “medically contraindicated . . . shall be
exempt from the appropriate provisions of this section.” Conn. Gen. Stat. § 10-204a(a)(2).
11
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review. (Pl.’s Opp’n at 20.) In Smith, the Supreme Court noted that the neutral, general
applicability framework may be inappropriate for certain “hybrid situation[s]” where a
Free Exercise Clause challenge is brought “in conjunction with other constitutional
protections,” such as the rights of parents. 494 U.S. at 881-82. Plaintiffs maintain that they
have established a “hybrid right” because their Free Exercise Clause challenge is brought in
conjunction with their constitutionally protected parental rights claim, so the Court should
apply strict scrutiny. (Pls.’ Opp’n at 21.) The Second Circuit has concluded that Smith’s
“language relating to hybrid claims is dicta and not binding on this court,” Knight v. Conn.
Dept. of Public Health, 275 F.3d 156, 167 (2d Cir. 2001), and held that a stricter standard of
review should not be used to analyze hybrid claims. Leebaert v. Harrington, 332 F.3d 134,
143 (2d Cir. 2003) (“‘[A]t least until the Supreme Court holds that legal standards under
the Free Exercise Clause vary depending on whether other constitutional rights are
implicated, we will not use a stricter legal standard’ to evaluate hybrid claims.” (quoting
Kissinger v. Bd. of Trs. of the Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177 (6th
Cir.1993))).
Plaintiffs concede that the Second Circuit has refused to apply strict scrutiny to
hybrid claims but contend that this “Court must follow Supreme Court precedent before it
follows Second Circuit precedent.” (Pls.’ Opp’n at 20.) Because the language in Smith “is
dicta and not binding on this court,” see Knight, 275 F.3d at 167, Plaintiffs’ reasoning is
misplaced. This Court will adhere to Second Circuit precedent which does not support a
heightened level of scrutiny based on a hybrid-rights theory. See Leebaert, 332 F.3d at 144.
Plaintiffs also assert that that Smith’s neutrality and general applicability framework
cannot be squared with the text and history of the First Amendment, so the Court should
not apply this framework. (Id. at 20-21.) However, the Court is bound by Smith’s neutrality
and general applicability framework and lacks authority to deviate to apply strict scrutiny
to P.A. 21-6 based solely on what Plaintiffs view as a “historically and textually faithful
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constitutional analysis.” (Id. at 21); see In re United States v. Manzano, 945 F.3d 616, 627
(2d Cir. 2019).
d. Application of Rational Basis Review
When a law is neutral and of generally applicability, “it need only demonstrate a
rational basis for its enforcement, even if enforcement of the law incidentally burdens
religious practice.” Fifth Ave. Presbyterian Church v. City of N.Y., 293 F.3d 570, 574 (2d Cir.
2002). Rational basis review requires only that the law “be rationally related to a legitimate
state interest,” Lange-Kessler v. Department of Educ., 109 F.3d 137, 140 (2d Cir. 1997), and
as long as there is a rational basis for the Act, the law must be upheld, FCC v. Beach
Commc'ns, 508 U.S. 307, 313 (1993). Plaintiffs “have the burden to negat[e] every
conceivable basis which might support” the law. Id. at 315.
The state has a legitimate interest in protecting the public health of the community.
At oral argument, Plaintiffs conceded that the state’s interest was not only legitimate, but
also compelling. See also Workman, 419 F. App’x at 352. The Act is rationally related to this
interest, where the number of religious exemptions sought has increased, impacting the
safety of herd immunity. (Defs.’ Mem. at 33 (“[T]he percentage of incoming kindergarten
students claiming religious exemptions had been increasing almost every year since 2012
. . . [and] it was reasonable for the legislature to have believed that that trend was likely to
continue, and that children then-enrolled in pre-K would claim more religious exemptions
. . . .”); see also Ex. D, Pls.’ Compl. [Doc. # 1-4] at 4.) The decision to allow medical
exemptions but not religious exemptions does not render the law irrational, as medical
exemptions further the health of schoolchildren by not requiring the vaccination of
children for whom vaccinations are contraindicated. (See Pls.’ Compl. at ¶ 47.) Since
Plaintiffs do not plead facts from which an inference can be drawn that the law lacks any
legitimate purpose, P.A. 21-6 withstands rational basis review.
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D. Count Two: Medical Freedom and Privacy
Plaintiffs complain that P.A. 21-6 violates their rights to privacy and medical
freedom under the First, Fourth, Fifth and Fourteenth Amendment. (Compl. ¶¶ 53, 56.) At
oral argument, however, Plaintiffs clarified that this right is housed under a Fourteenth
Amendment liberty or privacy theory and will be analyzed as such. See We the Patriots, Inc.,
17 F.4th at 293 n.34 (concluding that WTP was unlikely to succeed on the merits of their
claim asserting a right to privacy, medical freedom, and bodily autonomy and noting that
WTP did “not make any particularized argument for why the fundamental rights they
assert may be implicated by constitutional provisions other than the Fourteenth
Amendment”).
The Supreme Court and the Second Circuit both have held that the “Constitution
embodies no fundamental right that in and of itself would render vaccine requirements
imposed in the public interest, in the face of a public health emergency, unconstitutional.”
Id. at 293 (citing Jacobson, 197 U.S. at 25-31, 37; Phillips, 775 F.3d at 542-43.) In light of the
Second Circuit’s recent reliance on Jacobson, Plaintiffs’ contention at oral argument that it is
outdated and nonbinding lacks force here. Id. at 293 n.35, 294 (“Jacobson remains binding
precedent.”).
While Plaintiffs’ argument that their privacy right to decline vaccination for
themselves and their children is supported by Roe v. Wade, 410 U.S. 113, 152-53 (1973),
Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992), and Pierce v. Soc’y of Sisters,
268 U.S. 510, 535 (1925), (Pls.’ Opp’n at 23-24), these cases do not establish such a broad
privacy right to refuse vaccination, and “[t]his Court cannot find an overriding privacy right
when doing so would conflict with Jacobson.” We the Patriots, Inc., 17 F.4th at 293 n.35
(rejecting WTP’s argument that Roe, Planned Parenthood, and Lawrence v. Texas, 539 U.S.
558 (2003) established “a broad fundamental privacy right for all medical decisions”).
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The Court concludes that Plaintiffs’ medical freedom and privacy claim must be
dismissed for failure to state a claim.
E. Count Three: Equal Protection Clause
Plaintiffs argue that P.A. 21-6 violates the Equal Protection Clause because the Act
“creates age-based classes on who may continue to exercise their religious beliefs while
still availing themselves of an education” and denies an educational benefit to individuals
who do not “waive their religious identity while affording the same benefit to parents and
children who assert a medical exemption.” (Compl. ¶ 60-61.)
The Equal Protection Clause requires that no state “deny any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend XIV. To demonstrate that
an individual’s right to equal protection has been violated, a movant must show that he or
she was “selectively treated compared with other similarly situated [individuals], and that
selective treatment was based on impermissible considerations such as . . . religion.” Knight
v. Conn. Dep't of Public Health, 275 F.3d 156, 166 (2d Cir. 2001) (quoting Diesel v. Town of
Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000)). When reviewing an Equal Protection claim,
courts apply rational basis review where there is an absence of intentional discrimination
or where the “classification at issue does not implicate a suspect class.” See W.D., 521 F.
Supp. 3d at 410 (citing Vance v. Bradley, 440 U.S. 93, 96-97 (1979)) (granting the
defendants’ motion for summary judgment and finding as a matter of law that excluding
vaccinated children from school during a measles outbreak did not violate the Equal
Protection Clause by treating religious individuals differently from those with medical
exemptions and treating those under eighteen differently than those over the age of
eighteen).
Plaintiffs acknowledge that “age is not a suspect classification on its own for
Fourteenth Amendment Equal Protection clams,” but assert that “[w]hen a state’s agebased classification burdens the exercise of a fundamental right . . . the Fourteenth
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Amendment requires courts to employ strict scrutiny.” (Id. at 26.) Given that this Court has
concluded that Plaintiffs failed to state a claim under the Free Exercise Clause, no strict
scrutiny is applied. See W.D., 521 F. Supp. 3d at 410 (“[W]here a law subject to an equal
protection challenge ‘does not violate [a plaintiff's] right of free exercise of religion,’ courts
do not ‘apply to the challenged classification a standard of scrutiny stricter than the
traditional rational-basis test’”) (quoting A.M. ex rel. Messineo v. French, 431 F. Supp. 3d
432, 447 (D. Vt. 2019)); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83, (2000) (“[A]ge
is not a suspect classification under the Equal Protection Clause.”).
When conducting rational basis review at the motion to dismiss stage, “a plaintiff
must plead sufficient facts that, treated as true, overcome the presumption of rationality
that applies to government classifications.” Progressive Credit Union v. City of N.Y., 889 F.3d
40, 49-50 (2d Cir. 2018). “A court is not confined to the particular rational or irrational
purposes that may have been raised in the pleadings.” Id. Survival of Plaintiffs’ equal
protection claim thus depends on whether Plaintiffs have asserted facts demonstrating that
the government’s actions were irrational. See W.D., 521 F. Supp. 3d at 410 (quoting A.M. ex
rel. Messineo, 431 F. Supp. 3d at 447).
Plaintiffs have failed to make such a showing. Plaintiffs’ complaint asserts that P.A.
21-6 “singles out religious beliefs for less favorable treatment under the law and creates
age-based classes on who may continue to exercise their religious beliefs while still availing
themselves of an education.” (Compl. ¶ 64.) However, allowing children in grades
kindergarten through twelve to keep “existing religious exemptions” to “protect the
expectation interests of their parents, who had relied on the prior version of [the Act] when
making decision about how to educate their children” is not irrational. (See Defs.’ Mem. at
32-33.) At oral argument, Plaintiffs asserted that it was plainly irrational for Defendants to
believe that public health will be undermined by a narrow class of preschoolers but not be
impacted by the larger class of unvaccinated students who keep their religious exemptions.
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But Plaintiffs focus on a specific moment in time. The class of unvaccinated students who
may keep their religious exemptions will diminish as the students graduate, allowing the
state to reduce the number of unvaccinated students, protect the public’s health, and
balance the expectation interests of parents with currently enrolled students. (See Ex. D,
Pls.’ Compl. [Doc. # 1-4] at 4 (demonstrating that the number of religious exemptions in
kindergarteners has increased 0.9% overall since 2012-2013).) This consideration does
not make the state’s action irrational in the Court’s view. Plaintiffs also plead that P.A. 21-6
allows medically exempted children to attend school while denying that benefit to children
whose parents will “not waive their religious identity.” (Compl. ¶ 60.) As discussed above,
medical exemptions protect the health of individuals for whom vaccinations are
contraindicated, and do not negate the state’s presumption of rationality.12 As Plaintiffs fail
to plead facts demonstrating the irrationality of the state’s actions, Count Three is
dismissed for failure to state a claim.
F. Count Four: Fourteenth Amendment Right to Childrearing
In Count Four, Plaintiffs claim that P.A. 21-6 violates the Fourteenth Amendment’s
protection of a parent’s fundamental interest in the “care, custody, and control of their
children” in deciding what is best for their child’s health. (Compl. ¶¶ 63-64 (citing Troxel v.
Granville, 530 U.S. 57 (2000).) Count Four is coextensive with the Plaintiffs’ Free Exercise
claim. (See Defs.’ Mem. at 34-35; Pl.’s Opp’n at 30); see also Prince, 321 U.S. at 164 n.8
(concluding that appellant’s parental rights claim “as made and perhaps necessarily,
extends no further than that to freedom of religion, since in the circumstances all that is
comprehended in the former is included in the latter”).
In Plaintiffs’ Opposition, they advance the additional argument that “every child
currently enrolled in kindergarten through grade 12 with a religious exemption poses the
same ‘danger’ that the Plaintiffs’ children supposedly do, and they will continue to pose
that ‘danger’ for another decade.” (Pls.’ Opp’n at 29.) Even if pleaded, this argument does
not demonstrate that P.A. 21-6 is irrational under the same analysis above.
12
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Plaintiffs rely on Troxel v. Granville, 530 U.S. 57, 65-66 (2000), Pierce v. Soc’y of the
Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925), and Wisconsin v. Yoder,
406 U.S. 205, 215 (1972) to “clearly establish that the Plaintiffs possess a fundamental right
to control and otherwise direct the upbringing of their children, including opting to decline
a medical treatment that violates their faith.” (Pl.’s Opp’, at 31-32.) In Pierce, the Supreme
Court affirmed a preliminary injunction precluding enforcement of a statute requiring
children in Oregon to attend public school, finding that the statute “unreasonably
interfere[d] with the liberty of parents and guardians to direct the upbringing and
education of children under their control.” 268 U.S. at 534-35. In Troxel, the Supreme Court
invalidated a Washington state statute which allowed “‘[a]ny person’ to petition a superior
court for visitation right ‘at any time’ . . . whenever ‘visitation may serve the best interest of
the child,’” 530 U.S. at 60, because the statute “failed to provide any protection for [the]
fundamental constitutional right to make decisions concerning the rearing” of a child. Id. at
69-70. While Troxel recognized that parents have an interest in the “care, custody, and
control of their children,” the “scope of that right [was left] undefined.” Leebaert, 332 F.3d
at 141-42 (concluding that parents did not enjoy a fundamental right to “tell a public school
what his or her child will and will not be taught”). The Second Circuit also observed that
Yoder, where the Supreme Court invalidated a compulsory high-school attendance law in
response to complaints by Amish parents “took pains explicitly to limit its holding” based
on the record before it and the religious culture of the Amish.” Id. at 144-45.
Because Plaintiffs’ parental rights challenge is contingent on the viability of their
Free Exercise challenge, which the Court has dismissed, Plaintiffs have failed to state a
claim under the Fourteenth Amendment for the broad fundamental right of child rearing
that they assert.
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G. Count Five: Individuals with Disabilities Education Act
Plaintiffs allege unlawful discrimination in violation of IDEA. (Compl. at 12.) They
request a declaratory judgment that P.A. 21-6 violates IDEA, that IDEA preempts P.A. 21-6,
and that IDEA “requires the Defendants to provide disabled children with a free
appropriate public education in the least restrictive environment possible even if their
parents decline to vaccinate them because of their religious beliefs.” (Compl. at 14.) Their
Complaint represents that Plaintiff Elidrissi’s oldest child “is disabled within the meaning
of IDEA” because he “suffer[s from] a speech and learning disorder for which he now
receives special services.” (Compl. ¶¶ 4, 71.) Defendants maintain that this is insufficient to
establish that Plaintiff Elidrissi’s child is a “child with a disability” under IDEA. (Defs.’ Mem.
at 36.)
Under 20 U.S.C. § 1401(3)(a), a “child with a disability” includes a child with a (1)
“speech or language impairment[]” (2) “who, by reason thereof, needs special education
and related services.” Speech or language impairments are further defined in 38 C.F.R.
300.8(a)(1) as a “communication disorder, such as stuttering, impaired articulation, a
language impairment, or voice impairment, that adversely affects a child’s educational
performance.” A child that requires only services, but not “special education” does not
qualify as a “child with a disability” under IDEA. See 38 C.F.R. 300.8(a)(2); see also Marshall
Joint Sch. Dist. No. 2 v. C.D., 616 F.3d 632, 641 (7th Cir. 2010) (“The law is perfectly clear on
this point: if a child has a health problem ‘but only needs a related service and not special
education, the child is not a child with a disability.’”). Special education is a type of
“specially designed instruction, at no cost to parents, to meet the unique needs of a child
with a disability.” 20 U.S.C. § 1401(29); see also Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d
138, (2d Cir. 2002) (reversing the district court’s dismissal of an IDEA claim where the
complaint alleged that the child had “other health impairments” which limited her
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“strength vitality and alertness” and required “special education and related services” in
the form of homeschooling).
While Plaintiffs state that the child has “speech and learning disorders,” they allege
only that this child receives “special services” and not “special education.” (Compl. ¶ 40.) At
oral argument Plaintiffs acknowledged that failing to include the child’s eligibility for
special education may have been a defect in the complaint but asserted that the claim could
withstand a motion to dismiss with all inferences drawn in their favor. However, absent
any factual basis to infer that the child’s condition could fall under the regulatory definition
of a “child with a disability” and not just a “speech and learning disorder for which he needs
special services,” Plaintiffs have not demonstrated that they are entitled to relief. See
Twombly, 550 U.S. at 577. Plaintiffs’ allegation that Plaintiff Eldrissi’s child “is disabled
within the meaning of IDEA” is nothing more than a “naked assertion[] devoid of further
factual enhancement,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557), and
fails to give any factual basis for the conclusion that the child requires special education.
See 38 C.F.R. 300.8(a)(2) (mandating that a child with a covered disability that “only needs
a related service and not special education . . . is not a child with a disability”).
As Plaintiffs failed to plead facts establishing that they are entitled to relief under
IDEA, their allegation of unlawful discrimination under IDEA and request for declaratory
judgment cannot stand. Therefore, Count Five is dismissed.
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IV.
Conclusion
For the foregoing reasons, Defendants’ Motions to Dismiss [Docs. ## 21, 22, 23] are
GRANTED.
IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 11th day of January 2022.
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