Whittled to Nothing — Or Not: Supreme Court Advances Religious Liberty in Amish Vaccine Exemption Case

By Daniel Schmid

An Old Order Amish proverb states that “they who trim themselves to fit others will soon whittle themselves away.”

Thanks to a decision by the Supreme Court of the United States on Monday, New York’s storied Old Order Amish population need neither trim their religious beliefs to fit New York’s seemingly endless descent into godlessness, nor whittle the core values of their religious community down to nothing.

In 1860, New York became the second state in the nation to institute compulsory vaccination schemes on school pupils. Since 1966, as plainly required by the First Amendment, the compulsory vaccination laws in New York explicitly exempted those with sincerely held religious beliefs against forced vaccination to obtain a religious exemption to the regime and did not even require certification of such beliefs or the exemption from vaccination.

That all changed in 2019. Despite its near 160-year existence without the sky falling, New York repealed the religious exemption that year and made the compulsory vaccination scheme applicable to all students at all schools, including public, private, and parochial schools.

In repealing its constitutionally required religious exemption, New York contended that maintaining high vaccination rates against communicable diseases was necessary to protect its student population. And New York has noted in its legislative discussion that some schools had experienced significant drops in the vaccination rates, such that the Centers for Disease Control and Prevention’s desired 95% vaccination rate was not being met. Fair enough (if one buys that vaccines actually work).

New York’s answer to this purported problem: revoke the religious exemption available to religiously objecting parents and pupils. One would naturally ask, then, was the percentage of religious exemptions so high that New York’s unconstitutional removal of the exemption solved its purported problem of some schools having only 80% vaccination?

Wait for it ... no.

In the years preceding New York’s unconstitutional repeal of the religious exemption, the average percentage of pupils claiming the religious exemption ranged from 0.54% to 1.53%. The horror!

One need not be a mathematician to understand that half a percentage point of religious exemptions does not cause a purported 20% shortcoming in the percentage of vaccinated pupils. So, what was the cause of the remaining population of unvaccinated pupils? The medical exemption. Did New York repeal the medical exemption that was causing the alleged shortcoming? No.

In other words, New York’s unconstitutional repeal of the religious exemption accomplished exactly none of its stated goals. Except, perhaps it accomplished precisely the goal when one realizes what the actual goal of the legislation was — religious discrimination.

In the legislative discussion of New York’s repeal of the religious exemption, state senators made their actual objectives well known, claiming that religious beliefs against vaccination were “fake” and “utter garbage.” One senator said the unconstitutional repeal was necessary because a group of people in New York had placed their religious convictions ahead of public health in what he described as a “selfish and misguided” ideology. One legislator went so far as to claim that the Old Order Amish were equivalent to those who tried Galileo as a heretic.

New York’s Old Order Amish population maintains a robust and exclusive system of educating its children. Doing so is vital to its continued existence. Since inception, the Old Order Amish have rejected institutionalized churches and sought to return to the early, simple, Christian life — de-emphasizing material success, denying the competitive spirit, and insulating themselves from the modern world. The Supreme Court has recognized this precise religious belief system since at least 1972.

As the Supreme Court put it in Wisconsin v. Yoder, “the Old Order Amish religion pervades and determines the entire mode of life of its adherents.”

One aspect of that pervasive system of deeply held religious beliefs is objection to modern schools of educational thought, including “separation from, rather than integration with, contemporary worldly society.” As part of that separation and in conformance with their sincerely held “commitment to a century’s old way of life,” Old Order Amish have sincere objections to vaccinations that have an inextricably intertwined connection with aborted fetal cells.

That placed them in direct conflict with New York’s newly minted regime. And New York took its newfound unconstitutional authority to new heights in the case of Miller v. McDonald. There, rather than protecting the state’s storied Old Order Amish population, the godless zealots of New York “audited” the vaccination compliance of three Amish schools, found them in violation of the unconstitutional prohibition on religious exemptions, and fined the schools and families $118,000 for permitting their pupils to maintain their religious convictions and abstain from vaccination. And New York threatened that the fines would continue to grow should the schools maintain their refusal to comply with the statist regime’s unconstitutional dictates.

Three families and three Old Order Amish schools sued New York, claiming that New York’s gross intrusion into a centuries-old religious way of life was a violation of the First Amendment.

It is.

The federal district court in New York and the Second Circuit Court of Appeals both held that New York was permitted to require the Old Order Amish to violate their religious convictions.

On December 8, the Supreme Court issued an order granting the Old Order Amish’s petition for a writ of certiorari, vacated the Second Circuit’s judgment, and remanded the case for the lower courts to reconsider the issue in light of Mahmoud v. Taylor.

The Court’s instruction to look at Mahmoud is a constitutional blockbuster with potential reverberations across the First Amendment. The reason? Recognizing religious exemptions not just from public school curriculum, as required in Mahmoud, but from broader compulsory schemes outside of the public-school context significantly enhances the free exercise of religion and the right of parents to opt out of laws compelling their adherence to objectionable dictates.

Remember, the New York case arises out of enforcement of a statute that applies to private and parochial schools, as the Old Order Amish were subject to the compulsory vaccination requirement even though they operated exclusively for Old Order Amish pupils on Old Order Amish land and were taught exclusively by Old Order Amish teachers.

Mahmoud, by contrast, involved the rights of parents to opt out of public education curriculum to which they had religious objections. As the Court said in Mahmoud, “the Free Exercise Clause of the First Amendment protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life,” and that “for many people of faith across the country, there are few religious acts more important than the religious education of their children.”

The Court further noted in Mahmoud, that “the right of parents to direct the religious upbringing of their children would be an empty promise if it did not follow those children into the public school classroom.”

With the Miller v. McDonald order, the Supreme Court has now taken that a step further — the right to direct a child in the Old Order Amish religious system would be hollow if it did not carry with it the right to exempt one’s child from the overarching and religiously hostile compulsory vaccination laws in New York.

To paraphrase Mahmoud, “the compulsory-[vaccination] law carried with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent because it placed Amish children into an environment hostile to Amish beliefs, where they would face pressure to conform to contrary viewpoints and lifestyles.”

Requiring the lower courts to reevaluate New York’s blatant hostility to the Old Order Amish in light of Mahmoud necessarily requires the courts to notice that New York’s religious discriminatory compulsory vaccination law “implicates direct, coercive interactions between the State and its young residents.”

To do so in a manner that runs roughshod over sincere (and centuries-old) religious beliefs violates the First Amendment.

In other words, the Court has rejected New York’s “chilling vision of the power of the state to strip away the critical rights of parents to guide the religious development of their children,” and has instead followed “a very different view of religious liberty, one that comports with the fundamental values of the American people.”

And those values recognize that the adherence to one’s religious beliefs trumps adherence to a state’s discriminatory regime applicable to all aspects of life. That is a welcome and significant change.

In Miller, the Old Order Amish refused to trim their religious beliefs to fit New York’s godless regime, and the Supreme Court has instead required that New York whittle its religious discrimination to nothing.

First published in the Washington Stand.

For more from Daniel Schmid, Associate Vice President of Legal Affairs, click HERE.