Amish paradise? New York 'effectively' bans sect with biased school vaccine mandate, SCOTUS told
By Greg PiperWhen the Supreme Court reinstated an Amish challenge to New York's ban on religious exemptions for school vaccine mandates last year, without oral argument or a written opinion, a critic warned that SCOTUS had "quietly unsettled" the law profession's reading of its precedents: that religious liberty stops short of vaccine opt-outs.
The high court now has a chance to loudly unsettle that narrow reading of the First Amendment's free exercise clause and overturn one of its most controversial remaining precedents, penned by the late conservative icon Justice Antonin Scalia.
Amish schools and parents petitioned SCOTUS to slap down the 2nd U.S. Circuit Court of Appeals a second time for rubber-stamping its initial ruling for New York, after the justices told the lower court to review their recent precedent affirming parents' right to direct the religious upbringing of their children, in that case through LGBTQ curriculum opt-outs.
The 2nd Circuit also devised a tortured interpretation of a subsequent religious-upbringing precedent, which bans school districts from treating students as the opposite sex without parental consent, to dismiss its relevance to the Amish challenge, the plaintiffs said.
"New York has effectively prohibited the practice of the Amish faith" by removing a 50-year religious exemption in 2019, on the basis of a measles outbreak clustered around New York City, without any evidence any cases "occurred in the Amish communities," the petition says. Only five states lack a religious exemption.
“If New York wins, the Amish will be forced to flee the state," said one of their lawyers, the high-profile vaccine injury litigator Aaron Siri, who testified before Wisconsin GOP Sen. Ron Johnson's investigations panel last year on COVID-19 vaccine injury cover-up. His co-counsel on the Amish case is the First Liberty Institute.
The Amish aren't the only parents with limited options for keeping their children partially, wholly or just temporarily unvaccinated, more so now that the Centers for Disease Control and Prevention has reverted to one-size-fits-all COVID vaccine recommendations that closely resemble the American Academy of Pediatrics' schedule.
Families in the Washington, D.C. area are scrambling to find what they call "vaccine-friendly" pediatricians who will treat their unvaccinated children after getting kicked out of practices that hew to AAP recommendations, Axios reported. The city and its neighboring states, Maryland and Virginia, all offer religious exemptions.
Ignoring up to 100,000 'noncompliant students' but not the tiny Amish population
The Empire State threatens "massive penalties" on "small Amish communities on private Amish farms [...] attended only by Amish children," while allowing upwards of 100,000 "noncompliant students" to keep attending public schools, by New York's own estimates, the petition says. "That is more than quadruple the total Amish population in New York," children and adults.
The singling out of these "Old Order Amish," who believe "salvation requires life in a church community separate and apart from the world and worldly influence," is even more stark because New York doesn't threaten unvaccinated teachers or students with medical exemptions from vaccine mandates, the petition says.
The plaintiffs reminded the high court of its vocal exasperation with lower courts for their "persistent misapplication" of parental rights precedents.
Last year's LGBTQ curriculum precedent Mahmoud rebuked courts for claiming the 1972 Amish education precedent Yoder was limited to public high school opt-outs for Old Order Amish teens, and this year's gender-identity notification precedent Mirabelli corrected judges who claimed Mahmoud was limited to curricular decisions, the petition says.
A flood of litigation since this spring has sought to stretch those precedents even further, such as opting out children from classrooms with transgender teachers, girls' sports contests against male competitors who identify as girls and vaccination requirements for "virtual" school.
SCOTUS has already agreed to review a "state-sponsored kidnapping" law.
Even since Mirabelli, which reinstated a permanent injunction on California's so-called gender-secrecy policies, school districts in and outside the Golden State continue to argue the precedent doesn't apply to their similar policies.
Earlier this month, San Bernardino County Superior Court Judge Michael Sachs refused to stop blocking Chino Valley Unified School District's mandatory parental notification policy, saying parents must proactively ask districts whether they are secretly transitioning their children. (Local reporting says Sachs delivered his ruling orally, and it doesn't mention Mirabelli.)
Is a law with only secular exemptions 'generally applicable'?
The Amish petition asks SCOTUS to consider whether New York's "compulsion of permanent acts" that clash with their beliefs violates their free exercise rights under Mahmoud, and whether maintaining "secular exemptions and other comparable secular activity" also violates free exercise. But it has a much bigger target if justices feel so inclined.
The plaintiffs invited the high court to reconsider Justice Scalia's 1990 Smith precedent, which upheld religious infringements under "neutral and generally applicable" laws – in that case American Indian peyote rituals – but has since become the bane of conservative Christians for freeing the government from having to show a "compelling interest."
An unsuccessful SCOTUS petition by a cake baker, punished for refusing to design a lesbian wedding cake even after the high court prohibited forced creative expression in the wedding website precedent 303 Creative, asked the justices to consider simply overturning Smith to stop courts from "continu[ing] to manipulate the general applicability standard."
The 2nd Circuit repeatedly referred back to Smith in upholding New York's mandate, before and after SCOTUS reinstated the case, saying Mahmoud "does not change the result" and distinguishing public health orders from the school-specific context of the parental rights precedents, which the petition calls factually and legally incorrect "hair-splitting."
Mirabelli concerned healthcare decisions in the form of gender-confused students' psychological health, and the New York mandate explicitly enlists "school officials to displace parental religious formation" and even compels "Amish school officials who themselves share" the parents' objections to enforce the mandate, the plaintiffs say.
It's not just the appeals court for New York, Connecticut and Vermont botching recent SCOTUS precedents. The court's southern peer, the 4th Circuit, also did by upholding West Virginia's idiosyncratic school vaccine mandate for virtual school, according to the petition. The parents in that case petitioned the high court earlier this month.
The Amish plaintiffs emphasized the split among federal appeals courts over whether mandates with secular but not religious exemptions are generally applicable under Smith, which determines whether courts review the laws under the most challenging standard of judicial scrutiny or the easiest, which has been called a rubber stamp.
While they argue New York's preferential treatment for secular-based "nonvaccination" is enough to render the law unprotected by Smith, the plaintiffs reminded the high court that most of the current justices already called for reconsidering Scalia's handiwork when they overturned Philadelphia's ban on foster care agencies that only certify heterosexual couples.
The free exercise clause could become dead letter if SCOTUS keeps letting lower courts limit its precedents to "their particular facts," which will mean states can force parents to "endanger their own salvation" and their children's, the petition says.
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