F.F. v State of New York
2021 NY Slip Op 01541 | 194 AD3d 80
Appellate Division, Third Department
March 18, 2021
Pritzker, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 12, 2021
Sussman and Associates, Goshen (Michael H. Sussman of counsel), for appellants.
Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for respondents.
Whatley Kallas, LLP, New York City (Henry C. Quillen of counsel), for American Medical Association and others, amici curiae.
Pritzker, J.
Appeal from a judgment of the Supreme Court (Hartman, J.), entered December 11, 2019 in Albany County, which, among other things, granted defendants’ motion to dismiss the complaint.
In 2000, public health officials declared that measles had been eliminated from the United States (see Sponsor‘s Mem, Senate Bill S2994A [2019]). However, after seven cases of measles were reported in Rockland County in the fall of 2018, a nationwide measles outbreak1 occurred that was largely concentrated in communities in Brooklyn and Rockland County with “precipitously low immunization rates” (Sponsor‘s Mem,
Plaintiffs are parents from throughout the state who, prior to the repeal, were granted religious exemptions from their children‘s schools due to a myriad of religious beliefs. They commenced this declaratory judgment action seeking to have the repeal declared unconstitutional and the legislation enjoined. Defendants thereupon submitted a pre-answer motion to dismiss the complaint for failure to state a claim, which plaintiffs opposed. Supreme Court granted defendants’ motion, finding, among other things, that the repeal was a neutral law of general applicability driven by public health concerns and not tainted by hostility towards religion. Ultimately, the court concluded that the complaint failed to plausibly allege free exercise, equal protection or compelled speech claims and thus dismissed the complaint in its entirety. Plaintiffs appeal.
Plaintiffs raise a number of constitutional challenges, but primarily contend that the complaint alleged a viable cause of action that the repeal was motivated by active hostility towards religion and thus violated the Free Exercise Clause. “[I]n a motion to dismiss pursuant to
To begin our analysis, we must first determine the proper constitutional standard of review by answering the key question: given that the repeal eliminated a religious exemption, is it nonetheless a neutral law of general applicability? It is well settled that, “the right of free exercise [of religion] 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 [one‘s] religion prescribes (or proscribes)” (Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 US 872, 879 [1990] [internal quotation marks and citation omitted]). As such, to state a federal free exercise claim, a plaintiff generally must establish that “the object or purpose of a law is the suppression of religion or religious conduct” (Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 533 [1993]). Significantly, if the law is neutral and of general applicability, a rational basis is all that is required to meet constitutional muster under the First Amendment, even if the law “proscribes (or prescribes) conduct that [one‘s] religion prescribes (or proscribes)” (Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US at 879; Catholic Charities of Diocese of Albany v Serio, 7 NY3d 510, 526 [2006], cert denied 552 US 816 [2007]).
“Neutrality” and “general applicability” are not synonymous, but are “interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest” (Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US at 531-532). With regard to the “neutrality” factor, “[t]he Free Exercise Clause bars even subtle departures from neutrality on matters of religion” (Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Comm‘n, 584 US —, —, 138 S Ct 1719, 1731 [2018] [internal quotation marks and citations omitted]). “Factors relevant to the assessment of governmental neutrality include the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body” (id. [internal quotation marks and citation omitted]).
First, we do not find that the timing of the repeal reveals political or ideological motivation; rather, the record reflects that the repeal simply worked its way through the basic legislative process and was motivated by a prescient public health concern. As to the public health concerns, the American Medical Association, the Medical Society of the State of New York, the American Academy of Pediatrics and the New York State American Academy of Pediatrics, as amici curiae in support of defendants’ position, offered their conclusion that eliminating religious exemptions is in the best interest of public health. They describe the highly contagious nature of measles,2 noting that effective prevention will occur when 93% to 95% of the population becomes immune, requiring that “the vaccine be given to virtually everyone who can safely receive it.” The amici curiae note that they submitted statements to the Legislature in support of the repeal and were joined by 26 other organizations with expertise in medicine and public health. They further describe that the evidence before the Legislature at the time the repeal was adopted “was accurate and consistent with the scientific literature” and that the determination to eliminate the religious exemption was a “sound, evidence-based decision in the interest of public health.” Given the foregoing, the timing of the repeal fails to demonstrate any neutrality infraction by the Legislature, and instead reveals a reasonably
Second, we find plaintiffs’ claims regarding the Legislature‘s failure to hold hearings to be equally unavailing, given the Legislature‘s reliance upon data from the Centers for Disease Control and Prevention and other public health officials, including the amici, which represent various medical experts in the state and have confirmed that the data contemplated by the Legislature was scientifically accurate. Further, the legislative history reveals a spirited floor debate among the legislators, particularly in the Assembly, where many representatives professed both their personal concerns as well as concerns of their constituents regarding the repeal‘s impact on religion. The ultimate floor vote reflected the many different views among the lawmakers. Finally, the extensive bill jacket reveals that several hundred letters were received, mostly in opposition to the repeal, which address religious issues.
Third, we reject plaintiffs’ claims that, based upon statements by some of the legislators, the repeal was motivated by religious animus.4 Significantly, the 11 statements alleged to suggest religious hostility were attributed to only five of the over 200 legislators in office at any given time. Although a suggestion of animosity towards religion is sufficient to state a cause of action under the Free Exercise Clause, that the comments here were made by less than three percent of the Legislature does not, under these circumstances, taint the actions of the whole (compare Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Comm‘n, 584 US at —, 138 S Ct at 1729;
[1] The repeal is also a law of “general applicability.” Although, at first blush, the repeal of a religious exemption naturally seems to target the First Amendment, such is not the case here. In Roman Catholic Diocese of Brooklyn v Cuomo (592 US —, —, 141 S Ct 63, 66 [2020]), the Supreme Court of the United States determined that an executive order that imposed restrictions on attendance at religious services in certain areas in response to the COVID-19 pandemic would likely not be considered neutral and of general applicability and thus must satisfy strict scrutiny. As noted by Justice Kavanaugh in a concurring opinion, the regulation created a favored class of businesses and it thus needed to justify why houses of worship were excluded from that favored class (592 US at —, 141 S Ct at 73 [Kavanaugh, J., concurring]; see C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 76 [2020]). By contrast, here, the religious exemption previously created a benefit to the covered class, and now the elimination of the exemption subjects those in the previously covered class to vaccine rules that are generally applicable to the public (compare Roman Catholic Diocese of Brooklyn v Cuomo, 592 US at —, 141 S Ct at 66-67). In fact, the sole purpose of the repeal is to make the vaccine requirement generally applicable to the public at large in order to achieve herd immunity. Overall, even when viewed in the light most favorable to plaintiffs, Supreme Court did not err by concluding as a matter of law that the repeal is a neutral law of general applicability, not based upon hostility towards religion and not infringing upon the free exercise of religion.5 Accordingly, given the significant public health concern, the repeal is supported by a rational basis and does not violate the Free Exercise Clause (see e.g. C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d at 78).
Plaintiffs’ claim pursuant to the NY Constitution is equally unavailing. “[W]hen the [s]tate imposes ‘an incidental burden on the right to free exercise of religion’ [this Court] must consider the interest advanced by the legislation that imposes the burden, and that ‘the respective interests must be balanced to determine whether the incidental burdening is justified’ ” (Catholic Charities of Diocese of Albany v Serio, 7 NY3d at 525 [brackets omitted], quoting La Rocca v Lane, 37 NY2d 575, 583 [1975], cert denied 424 US 968 [1976]). “[S]ubstantial deference is due the Legislature, and . . . the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom” (Catholic Charities of Diocese of Albany v Serio, 7 NY3d at 525). Given the Legislature‘s substantial interest in protecting the public health, plaintiffs fall short of establishing such a claim (see id. at 528).
[2] Here, since none of the classifications are inherently suspect nor do they jeopardize the exercise of a fundamental right, rational basis review applies. To this end, we reject plaintiffs’ argument that the repeal makes classifications based on religion, which could implicate a fundamental right and require heightened scrutiny. Instead, the repeal places all school-aged children who are not medically exempt on equal footing, which does not offend equal protection. For example, the Supreme Court of the United States has held that “there is no denial of equal protection in excluding [Jehovah‘s Witnesses‘] children from doing . . . what no other children may do” (Prince v Massachusetts, 321 US 158, 171 [1944]), and, indeed, there is no equal protection violation where children are not permitted to attend school without a vaccination (see Zucht v King, 260 US 174, 176-177 [1922]). Significantly, “in the exercise of the police power[,] reasonable classification may be freely applied, and that regulation is not violative of the [E]qual [P]rotection [C]lause merely because it is not all-embracing” (id. at 177).
Under the well-settled case law and the facts presented here, the repeal easily survives rational basis review. The group targeted by the Legislature is, and has been since the enactment of
[3] Finally, contrary to their contention, plaintiffs’ freedom of speech claim fails as a matter of law. “[F]reedom of speech prohibits the government from telling people what they must say” (Rumsfeld v Forum for Academic & Institutional Rights, Inc., 547 US 47, 61 [2006]). Expressive conduct, however, is protected by the First Amendment if it is “conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative” (Clark v Community for Creative Non-Violence, 468 US 288, 294 [1984]; see Matter of Gifford v McCarthy, 137 AD3d 30, 41 [2016]). Given this two-part test, plaintiffs’ compliance with
Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.
Ordered that the judgment is affirmed, without costs.
Footnotes