Can Connecticut eliminate the religious exemption from mandatory school vaccinations without violating the Constitution?

Plain-English summary

House Majority Leader Matthew Ritter asked the Connecticut Attorney General whether the legislature could eliminate the religious exemption to mandatory school immunizations in Section 10-204a(a) without running afoul of the U.S. or Connecticut Constitution. The Attorney General concluded there was no serious constitutional barrier: the U.S. Supreme Court had repeatedly upheld states' authority to require and regulate school immunizations going back to 1905, and Connecticut's own statutory religious-liberty protection, Conn. Gen. Stat. § 52-571b, would not stand in the way because combating the spread of communicable disease in schools qualifies as a compelling state interest and eliminating the exemption would be a narrowly tailored way to serve it.

The opinion did not take a position on whether the legislature should eliminate the exemption. That, the Attorney General wrote, was a policy decision for the legislature and the Governor, not a legal question for this office.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

At the time of this opinion, Section 10-204a(a) let a parent or guardian exempt a child from Connecticut's school immunization requirements by submitting a statement that immunization was contrary to the family's religious beliefs. Following measles outbreaks elsewhere in the country and new Connecticut Department of Public Health data showing a number of schools with kindergarten immunization rates below the 95 percent threshold recommended by the CDC, Ritter asked the Attorney General to evaluate whether repealing the exemption would survive constitutional challenge.

The opinion's federal-law analysis rested on a line of U.S. Supreme Court cases beginning with Jacobson v. Commonwealth of Massachusetts, which recognized the states' police-power authority to enact compulsory vaccination laws, through Zucht v. King, which upheld conditioning school admission on immunization, to Prince v. Massachusetts, which held that "the right to practice religion freely does not include liberty to expose the community or the child to communicable disease." The opinion also cited more recent federal appellate decisions, including Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir.), and Workman v. Mingo County Bd. of Educ., 419 Fed. Appx. 348, 353-55 (4th Cir.), both upholding mandatory immunization laws against free-exercise, due-process, and equal-protection challenges, as well as Brown v. Stone, 378 So.2d 218, 222-24 (Miss.), which struck down a religious exemption on equal-protection grounds.

Turning to Connecticut law, the opinion explained that Conn. Gen. Stat. § 52-571b bars the state from burdening the free exercise of religion under Article I, § 3 of the state constitution, even through a rule of general applicability, unless the burden serves a compelling state interest by the least restrictive means. The opinion reasoned that combating the spread of dangerous infectious disease among schoolchildren is a compelling state interest, and that eliminating the religious exemption would satisfy the least-restrictive-means test because affected families would retain the option of homeschooling rather than losing all ability to raise their children according to their religious beliefs. The opinion noted it had found no Connecticut case holding that a religious exemption from school vaccination requirements was constitutionally required, and pointed to Bissell v. Davison, an 1894 Connecticut Supreme Court decision upholding mandatory school immunization.

Common questions

Q: Did the Attorney General's opinion say Connecticut should get rid of the religious exemption for school vaccines? A: No. The opinion addressed only whether doing so would be constitutional. The Attorney General wrote that whether to actually repeal the exemption was a policy decision for the legislature and the Governor.

Q: Would eliminating the religious exemption have forced parents to vaccinate their children? A: The opinion noted that families who objected to vaccination on religious grounds could still decline vaccination and instead educate their children through homeschooling rather than public or private school enrollment.

Q: What other state examples did the opinion discuss? A: The opinion discussed West Virginia’s elimination of a religious exemption and a California appellate decision upholding elimination of one. It discussed Mississippi differently: the Mississippi Supreme Court had struck down that state’s religious exemption on equal-protection grounds.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2019/2019-01_religious-exemption.pdf?rev=6217d22a666a4ab6aaf0d9075398122c

Original opinion text

The source PDF's own pagination begins on page 2; page 1 of the opinion letter is not part of the published document. The text below reproduces the PDF as published.

The Honorable Matthew Ritter
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I.

The U.S. Supreme Court Has Repeatedly Affirmed The Authority of the States On This Issue For More Than 100 Years.___

Federal law has supported the authority of the states to require and regulate immunizations for children for over 100 years. As early as 1905, the United States Supreme Court recognized the states' authority to enact "health laws of every description" to protect the public health and the public safety. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905). Jacobson involved a Fourteenth Amendment challenge to the constitutionality of a Massachusetts statute requiring compulsory vaccination for smallpox. The Court, recognizing that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members", held that the state law did not "invad[e] any right secured by the Federal Constitution." Id. at 27, 38. Notably, the Court cited with approval several state court decisions upholding "statutes making the vaccination of children a condition of their right to enter or remain in public schools." Id. at 32-34.2 Seventeen years later, the U.S. Supreme Court affirmed that Jacobson "had settled that it is within the police power of a state to provide for compulsory vaccination," and that such ordinances in the exercise of that police power may make reasonable classifications reflecting the "broad discretion required for the protection of the public health." Zucht v. King, 260 U.S. 174, 176-77 (1922). Accordingly, the Zucht Court held that a city ordinance requiring immunization for school attendance violated neither due process nor equal protection principles. Id.

Twenty-two years after Zucht, the U.S. Supreme Court cited Jacobson for the proposition that the "right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Noting that the "state's authority over children's activities is broader than over like action of adults," the Prince Court reasoned that "[p]arents may be free to become martyrs themselves. But it does not follow they are free . . . to make martyrs of

2

Before 1905, the states of Indiana, Georgia, North Carolina, California, Connecticut, Vermont, New York and Pennsylvania had all upheld state statutes requiring vaccination of children as a condition of their right to enter or remain in public schools. Jacobson, 197 U.S. at 32-35 and cases cited therein.

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their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Id. at 168, 170.3

Jacobson, Zucht and Prince remain valid today. Numerous federal courts in recent times have held that the free exercise of religion must give way in the face of mandatory state vaccination laws. The United States Court of Appeals for the Second Circuit recently held "following the reasoning of Jacobson and Prince, that mandatory vaccination as a condition for admission to school does not violate the Free Exercise Clause." Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir.) (per curiam), cert. denied, 136 S. Ct. 104 (2015). The Phillips Court observed that a law that is neutral and of general applicability need not be justified by a compelling government interest even if it has the incidental effect of burdening a particular religious practice. Id.; accord, Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017), cert. denied, 138 S. Ct. 1999 (2018) (upholding Michigan's mandatory immunization law).

Similarly, the Fourth Circuit upheld West Virginia's decision to eliminate any religious exemption to mandatory immunization statutes, rejecting challenges based on the free exercise, due process and equal protection clauses of the U.S. Constitution. Workman v. Mingo County Bd. of Educ., 419 Fed. Appx. 348, 353- 55 (4th Cir.), cert. denied, 565 U.S. 1036 (2011). Citing Jacobson, Zucht and Prince, the Workman Court noted that the "Supreme Court has consistently recognized that a state may constitutionally require school children to be immunized." Id. at 356. The court found that this was "not surprising given the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs." Id. (internal citations omitted).

In another vein, the Mississippi Supreme Court struck down a state statutory exemption from mandatory vaccinations on the basis of religious beliefs, 3

Notably, Prince was decided after Cantwell v. Connecticut, which established that the Fourteenth Amendment to the U.S. Constitution prohibited state legislatures from enacting legislation that would infringe upon the First Amendment protections for the free exercise of religion and the prohibition of state "establishment" of religion. Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). While Cantwell concerned a Connecticut law prohibiting, among other things, solicitation of donations for religious purposes without a state license, the Court observed that a state may, consistent with constitutional principles, "safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment." Id.

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on the grounds that it violated equal protection under the Fourteenth Amendment of the U.S. Constitution. Brown v. Stone, 378 So.2d 218, 222-24 (Miss.), cert. denied, 449 U.S. 887 (1980). Noting that vaccinations prevent "the horrors of crippling and death resulting from poliomyelitis or smallpox or from one of the other diseases against which means of immunization are known and have long been practiced successfully," the Court held that a religious exemption would "discriminate against the great majority of children whose parents have no such religious convictions." Id. at 223. Thus the Brown Court concluded that requiring "the great body of school children to be vaccinated and at the same time expose them to the hazard of associating in school" with children who have not been vaccinated because of a religious exemption would violate equal protection under the Fourteenth Amendment. Id.

II.

Analysis Under Connecticut Law Supports The State's
Authority To Require School Immunizations._____

Connecticut constitutional provisions and statutes support the same result. Our courts have generally followed federal constitutional jurisprudence in interpreting Connecticut's Free Exercise Clause, finding such "precedent construing the analogous federal constitutional provision … persuasive." Cambodian Buddhist Soc. of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 399-400 (2008); see also Mayock v. Martin, 157 Conn. 56, 64 (1968) (consistent with First Amendment free exercise protections a state may safeguard the peace, good order and comfort of the community without invading liberties protected by the Fourteenth Amendment; citing inter alia, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).

It is important to note that our State's school vaccination law does not require vaccination of all children in all circumstances. This law does not prohibit parents or guardians from freely exercising their genuinely held religious beliefs. If the religious exemption of Section 10-204a(a) was eliminated or suspended, parents and guardians who object to vaccinations on religious grounds could continue to do so and educate their children through alternative means, such as through home schooling.

Connecticut has enacted statutory protections for the free exercise of religious beliefs. Conn. Gen. Stat. § 52-571b provides that the state or any Connecticut political subdivision cannot burden the free exercise of religion under Article I, § 3 of the state constitution "even if the burden results from a rule of

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general applicability," except where the burden is in furtherance of a compelling state interest, and it is the least restrictive means of furthering that compelling state interest. Repealing or suspending the religious exemption does not create any necessary conflict with Section 52-571b in the first instance. Combatting the spread of dangerous infectious diseases, particularly among children who congregate in schools where the danger of the spread of such diseases is particularly high, grounded as it is in the state's paramount duty to seek to ensure public safety, has repeatedly been found to constitute a compelling state interest.4 See, e.g., Zucht, Prince.

The only legal question here is whether requiring vaccination as a precondition to enrolling at a public or private school, without a religious exemption, is the "least restrictive means" of accomplishing the salutary purpose of the statute. Such an inquiry must be informed by the underlying principle that "'[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.'" Phillips, 775 F.3d at 543 (quoting Prince, 321 U.S. at 166-67). The legislature could reasonably determine that the requirements of Section 52-571b were satisfied in this situation.5 If the efficacy of mandatory vaccinations depends upon exemptions being limited and rarely exercised, and if a religious exemption is being so frequently taken as to undermine the effectiveness of the mandatory vaccination program, elimination of the exemption would appear to meet the "least restrictive means" test of Conn. Gen. Stat. § 52-571b(b)(2). Eliminating the religious exemption from the existing statute would be narrowly tailored to the state's goal, since it would protect children from the spread of dangerous communicable diseases, while allowing a parent or guardian who objected to vaccinations on religious grounds the option to home school his or her child.

4

The Centers for Disease Control gives us an insight into these diseases and their effects on the health of children and adults. See, e.g., https://www.cdc.gov/vaccines/parents/diseases/child/measles.html. 5 The legislature could of course obviate any concern regarding a conflict with Conn. Gen. Stat. § 52-571b(b) by specifically exempting the mandatory vaccination law from the requirements of § 52-571b(b). To the extent that there was any tension between the two legislative actions, the later one would prevail. Tomlinson v. Tomlinson, 305 Conn. 539, 553 (2012) ("'[i]f the expressions of legislative will are irreconcilable, the latest prevails. . . .'").

Despite a diligent search, we have been unable to find a Connecticut case that has held that a religious exemption from school vaccinations was constitutionally required. On the contrary, over 100 years ago, the Connecticut Supreme Court upheld mandatory school immunizations. Bissell v. Davison, 65 Conn. 183 (1894). More recently, a superior court case has upheld the constitutional dimensions of immunization in the context of a child custody case. In Archer v. Cassel, the court reviewed the applicable federal jurisprudence, and held that "Connecticut courts have the authority to order children to be vaccinated." 60 Conn. L. Rptr. 10, 2015 WL 1500447 (Conn. Sup., March 10, 2015). The court in Archer noted that "religious freedom in this country is not an absolute right" and that "the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of the child is at risk or when there is a recognized threat to public safety." Id.

The Connecticut Supreme Court has recently held that the Commissioner of the Department of Children and Families, acting as an appointed guardian, could not compel a child to be vaccinated against the wishes of biological parents whose parental rights have not been terminated. In re Elianah T.-T., 326 Conn. 614 (2017) on reconsideration, 327 Conn. 912 (2017). However, Elianah T.-T. was predicated not on federal or state constitutional claims, but on interpretation of the state statute authorizing the Commissioner to ensure "medical treatment" (which the Court held implied curing illness or injury but not preventive care such as vaccinations).6

6

Connecticut's constitutional guarantee of free public education (Conn. Const. art. VIII,
§ 1) does not limit the State's power to require vaccinations. A California appellate court held that given the compelling need to fight the spread of contagious diseases, elimination of the state's religious exemption to mandatory vaccinations would not violate the state constitutional right to a free education, even if analyzed under strict scrutiny. Brown v. Smith 24 Cal.App.5th 1135, 1145-47 (2018). The Brown v. Smith court also upheld the elimination of the exemption against state equal protection and due process claims. Id., at 1147-1148.