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A federal appeals court last week overturned a lower court’s finding that Rockland County, New York, public health authorities were justified in issuing an emergency order banning anyone under age 18 who was unvaccinated against measles, including those with religious exemptions, from public spaces during a measles outbreak in 2018-2019.

Multiple parents of children affected by the emergency order, in April 2019, sued Rockland County, the county’s executive and health commissioner, alleging that the order was “motivated by animus against religion,” Reuters reported.

The plaintiffs asserted several claims, including that the order violated the Free Exercise Clause of the First Amendment.

The 2nd U.S. Circuit Court of Appeals’ three-judge panel agreed and its unanimous decision means the case will now go to a jury, on the basis that there are questions of fact for which a jury must make a determination.

The decision highlighted public statements made by county officials possibly indicating animosity toward religion and religious exemptions, including characterizing individuals claiming such exemptions are “anti-vaxxers.”

The federal appeals court also questioned “religious gerrymander[ing]” and the constitutionality of a law passed by New York State during the measles outbreak in 2019 barring religious exemptions for schoolchildren.

Remarking on last week’s ruling, Michael Sussman, attorney for the plaintiffs, told The Defender:

“The decision starts the process of gaining justice for people oppressed because of their sincerely held religious beliefs.

“This should not be happening in America. Those so affected should be compensated by those who trammeled their rights and we need to take the vindication of these rights seriously.”

Mary Holland, president and general counsel of Children’s Health Defense, also commented on the ruling, telling The Defender:

“This recent decision from the 2nd Circuit Court of Appeals regarding the 2019 measles outbreak is tremendously welcome. The trial court must now go back and look at the First Amendment and whether these families were the victims of unlawful governmental hostility to religion.

“Judge Park’s concurrence provides especially welcome reasoning that has been absent in the last few years of pandemic panic. While justice here has been slow, this is a new chapter in judicial treatment of religious exemptions.”

Emergency order singled out students with religious, but not medical, exemptions

According to court documents, at the start of the measles outbreak in October 2018, Rockland County Executive Ed Day and Dr. Patricia Schnabel Ruppert, the county’s health commissioner, worked with the New York State Department of Health to implement progressively stricter measures to contain the spread.

Day and Ruppert ordered students who had not received measles vaccines and who attended schools that had confirmed measles cases or vaccination rates below a certain threshold but that were near areas with high concentrations of cases to stay home. Those children were later barred from entering public places.

County officials identified two zip codes “with the highest concentrations of confirmed cases, which cover[ed] approximately eleven square miles and primarily contain[ed] Hasidic Jewish communities.”

The vaccination threshold for schools also was progressively increased by Ruppert, from an initial 70%, to 80% and then 95%.

On Dec. 3, 2018, the Green Meadow Waldorf School and the Otto Specht School were ordered to bar all non-vaccinated students from attending, for 21 days, because the schools were in one of the zip codes identified by public health officials and only one-third of students in those schools were vaccinated.

As noted in last week’s decision, “Prior to the start of the measles outbreak, all of Plaintiffs’ children had previously received religious exemptions to vaccination, including for measles, from GMWS [Green Meadow Waldorf School]. However, the First Exclusion Order and the subsequent exclusion orders provided no religious or medical exemptions.”

On March 26, 2019, Day issued the Local State of Emergency banning unvaccinated children age 18 and younger from all places of public assembly, including schools, unless they had a medical exemption or documented serological immunity, and eliminating religious exemptions.

The emergency declaration remained in effect until Sept. 25, 2019.

Parents of students at the two schools who were affected by the ban sued to block the orders, arguing that because the orders singled out students who were unvaccinated for religious reasons, but not medical reasons, they were motivated by hostility toward religion.

The plaintiffs argued the orders were baseless, because the measles outbreak was limited to members of the Hasidic Jewish community, none of whom attended the schools in question.

Parents: County officials were ‘hostile’ to religion

Plaintiffs pointed to comments by Day and Ruppert suggesting they were hostile toward religion and religious exemptions.

Day, in lobbying the New York State legislature to repeal what was then New York State’s statutory religious exemption for schoolchildren, said:

“There’s no such thing as a religious exemption. The bottom line here now is that in addition to the fear factor we have, we’ve had babies in ICUs. We’ve had a baby born with measles.

“Let’s do something that was done willingly years ago until people got in the middle, raised approaches and thoughts that were debunked years ago, and now to the direct detriment to the health of other people in the state. It makes no sense. We need this legislation passed . . . to wait is a recipe for medical disaster.”

Day characterized “anti-vaxxers” as “loud, very vocal, also very ignorant,” implying that this included the parents who were invoking religious exemptions for their children in response to the emergency order.

Day’s lobbying efforts were successful. The New York State legislature on June 13, 2019, passed a bill repealing all religious exemptions for vaccination.

Day also testified during his deposition that he issued the orders after “Ruppert expressed concern regarding a possible rise in measles during the upcoming holiday season of Easter and Passover.”

In the Feb. 22, 2021, judgment granting the defendants summary judgment, Judge Judith McCarthy of the U.S. District Court for the Southern District of New York, found there was not enough evidence to conclude the county’s orders were motivated by animosity toward religion.

In her decision, Judge McCarthy claimed the emergency declaration imposed equal burdens on and did not distinguish between religious and non-religious children, other than those with medical exemptions, who she argued were being “protected” by the order to quarantine all other categories of unvaccinated children.

The District Court also found Day’s remarks about “anti-vaxxers” did not have a discriminatory intent, “because none of Day’s statements are derogatory, nor do they indicate ‘active hostility’ towards religion.”

Judge McCarthy’s decision, written in February 2021, in the midst of lockdowns, vaccine passports and severe restrictions imposed on the general population in response to COVID-19, stated that applying Rockland County’s order “to unvaccinated adults would be harmful to the community because those adults would be unable to work, make a living, and care for their families.”

The Supreme Court of Rockland County on April 5, 2019, issued a temporary injunction against the emergency order. An appellate court judge on April 12, 2019, upheld the injunction.

Court of Appeals: questions of fact must be decided by a jury

In disagreeing with the District Court, U.S. Circuit Judge Eunice Lee, speaking for the majority along with Circuit Judge Rosemary Pooler, wrote that the case:

“Raises numerous factual disputes — including whether there is evidence of religious animus, to whom the emergency declaration applied, and what the County’s purpose was in enacting the declaration — that prevent Defendants from prevailing on summary judgment.”

The court said there were “factual issues” in the case which must be decided upon by a jury, writing:

“Because there are factual issues relevant to whether the Emergency Declaration was neutral and generally applicable, the district court erred in granting summary judgment in favor of Defendants on Plaintiffs’ claim that the Emergency Declaration violated their rights under the Free Exercise Clause.

“While a reasonable juror could conclude that Day’s statements evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite.”

The majority also stated, “As the Supreme Court has recognized, the government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”

Regarding Day’s comments, the court said, “The evidence could support a finding of discriminatory intent.” However, a reasonable juror also plausibly could decide that Day “was merely expressing a concern for the community’s health, not a hostility towards religion.”

“At bottom, this presents the sort of close factual question that should be left to the jury,” wrote the majority.

The court also observed that during oral arguments in the case, the county’s legal counsel remarked on the plaintiffs’ “so-called religious beliefs.”

Also regarding “factual issues” identified by the court, the majority questioned whether the emergency orders were imposed to stop the spread of measles or, instead, to promote vaccination, writing:

“Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons.

“There are also disputes as to whether the County’s purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court’s grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.”

On this issue, the majority observed that “The language of the Declaration itself … does little to resolve this issue.”

“This is another fact-intensive question that should be explored at trial through the examination of evidence that supports or undermines the two suggested purposes, including whether there is any evidence to suggest that the County’s stated purpose is pretextual,” the court said.

In his concurring opinion, Judge Michael Park raised questions about the validity of Rockland County’s emergency orders — and the potential constitutionality of New York State’s subsequent decision to stop recognizing religious exemptions for schoolchildren.

Park highlighted Day’s “numerous disparaging comments about religious objectors as part of his effort to repeal the religious exemption from the statewide vaccine mandate,” and described Rockland County’s orders as “religious gerrymander[ing],” writing:

“In the spring of 2019, Rockland County quarantined children who were unvaccinated for measles for religious reasons — prohibiting them from entering any public place — but not children who were unvaccinated with medical exemptions.

“County officials did not even try to hide their reasons for engaging in this ‘religious gerrymander[ing],’ which served to isolate, target, and burden Plaintiffs’ religious practices.”

As a result, for Park, “The Emergency Declaration was not neutral because its ‘object’ was to burden Plaintiffs’ choices ‘at least in part because of their religious character,’” questioning the lower court’s deference to the “Defendants’ authority as elected representatives to use their best judgment.”

Park also described the New York State law barring religious exemptions that resulted from Day’s lobbying efforts as “an extreme outlier” among U.S. states, adding that “We have not yet had occasion to review the constitutionality of New York’s new regime.”