22-249-cv We The Patriots USA, Inc. et al. v. Conn. Office of Early Childhood Dev. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: October 13, 2022 Decided: August 4, 2023)

Docket No. 22-249-cv

WE THE PATRIOTS USA, INC.; CT FREEDOM ALLIANCE, LLC; CONSTANTINA LORA; MIRIAM HIDALGO; ASMA ELIDRISSI, Plaintiffs-Appellants,

v.

CONNECTICUT OFFICE OF EARLY CHILDHOOD DEVELOPMENT; CONNECTICUT STATE DEPARTMENT OF EDUCATION; CONNECTICUT DEPARTMENT OF PUBLIC HEALTH; BETHEL BOARD OF EDUCATION; GLASTONBURY BOARD OF EDUCATION; STAMFORD BOARD OF EDUCATION, Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Before: LEVAL, CHIN, and BIANCO, Circuit Judges.

Appeal from a judgment of the United States District Court for the

District of Connecticut (Arterton, J.) dismissing claims against defendants- appellees challenging Public Act 21-6, which revised the Connecticut General

Statutes to, inter alia, repeal religious exemptions from state immunization

requirements for schoolchildren, college and university students, and childcare

participants. Plaintiffs-appellants are two organizations and three individuals

who allege that the Act violates the Free Exercise Clause of the First Amendment

of the U.S. Constitution and other federal constitutional and statutory

guarantees. The district court granted the motions of defendants-appellees --

three state agencies and three local boards of education -- to dismiss certain of

plaintiffs-appellants' claims against the state agencies as barred by the Eleventh

Amendment, to dismiss the organizational plaintiffs-appellants' claims for lack of

standing, and to dismiss all counts of the complaint for failure to state a claim.

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

Judge Bianco concurs in part and dissents in part in a separate opinion.

NORMAN A. PATTIS (Cameron L. Atkinson, on the brief), New Haven, CT, for Plaintiffs-Appellants.

DARREN P. CUNNINGHAM, Assistant Attorney General (Timothy J. Holzman, Alayna M. Stone, on the brief), for William Tong, Attorney General of Connecticut, Hartford, CT, for Defendants- Appellees.

2 CHIN, Circuit Judge:

This case requires us to decide whether a State that has for many

years exempted religious objectors from its vaccination requirements for

students and participants in childcare programs violates the Free Exercise Clause

and other federal constitutional and statutory guarantees by repealing that

exemption to protect the public health and safety.

All States have such vaccination requirements. The vast majority of

States offer religious exemptions from vaccination requirements. In 2021,

Connecticut became the fifth State to cease allowing such religious exemptions,

following in the footsteps of Mississippi, California, New York, and Maine. West

Virginia has never exempted religious objectors. Plaintiffs-appellants are two

membership organizations and three individuals ("plaintiffs") who allege that

Public Act 21-6 (the "Act"), which revised the Connecticut General Statutes to,

inter alia, repeal the religious exemptions, violates the Free Exercise Clause of the

First Amendment of the U.S. Constitution; other guarantees under the Fourth,

Fifth, and Fourteenth Amendments; and the Individuals with Disabilities

Education Act (the "IDEA"),

et seq. Defendants-appellees are

three state agencies and three local boards of education ("defendants"). Plaintiffs

3 argue, inter alia, that the Act demonstrates hostility to religious believers,

impermissibly treats religious and nonreligious reasons for declining vaccination

differently, jeopardizes their rights to medical freedom and childrearing,

unlawfully discriminates on the basis of age, and denies one plaintiff's disabled

child a free appropriate public education in the least restrictive environment

possible.

Plaintiffs asked the district court to enter judgment declaring that

the Act violates the Constitution and the IDEA, as well as an injunction

prohibiting defendants from enforcing the Act. The district court granted

defendants' motion to dismiss plaintiffs' complaint in its entirety, holding that

(1) the defendant state agencies were immune from suit under the Eleventh

Amendment of the U.S. Constitution; (2) the organizational plaintiffs lacked

standing to sue; and (3) all five counts of the complaint failed to state a claim.

Only one court -- state or federal, trial or appellate -- has ever found

plausible a claim of a constitutional defect in a state's school vaccination mandate

on account of the absence or repeal of a religious exemption. See Bosarge v. Edney,

--- F. Supp. 3d ---, No. 22-cv-233,

(S.D. Miss. Apr. 18, 2023)

(entering preliminary injunction requiring state officials to offer religious

4 exemption from school immunization mandate). But see, e.g., Phillips v. City of

New York,

(2d Cir. 2015) (per curiam); Workman v. Mingo

Cnty. Bd. of Educ.,

(4th Cir. 2011) (unpublished

disposition); Whitlow v. California,

, 1085-89 (S.D. Cal. 2016);

Love v. State Dep't of Educ.,

(Cal. App. 2018); F.F. ex rel.

Y.F. v. State,

, 742 (3d Dep't 2021), cert. denied sub nom. F.F. ex rel.

Y.F. v. New York,

(2022).

We decline to disturb this nearly unanimous consensus. For the

reasons that follow, we AFFIRM the district court's dismissal of the first four

counts of the complaint. But we VACATE the portion of the district court's

judgment dismissing the fifth count of the complaint and REMAND for further

proceedings with respect to that claim.

STATEMENT OF THE CASE

In reviewing the district court's decision to grant defendants' motion

to dismiss, we take all the material facts alleged in the complaint to be true, and

we draw all reasonable inferences in plaintiffs' favor. See Eliahu v. Jewish Agency

for Israel,

(2d Cir. 2019) (per curiam) (discussing standards of

review for motions to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6)). In

5 addition to the facts alleged in the complaint, "as a fundamental matter, courts

may take judicial notice of legislative history." Goe v. Zucker,

(2d

Cir. 2022) (citing Territory of Alaska v. Am. Can Co.,

(1959)),

cert. denied,

(2023).

I. Statutory Background

A. Public Health Concerns

States have long conditioned enrollment in schools and other

educational programs on students being immunized against communicable

diseases. In Connecticut, vaccination mandates for schoolchildren date back to

1882, the same year the State began requiring attendance at school for children

aged eight to fourteen. See 1882 Conn. Pub. Acts ch. 80, § 2, ch. 135, § 1. 1 In 1923,

the Connecticut General Assembly first formally carved out medical exemptions,

providing that a child need not be vaccinated upon presentation of "a certificate

from a physician . . . certifying that, in the opinion of such physician, such

vaccination would not be prudent on account of the physical condition of such

child." 1923 Conn. Pub. Acts ch. 271, § 1. Religious exemptions followed in 1959,

1 Subject to exceptions not relevant here, Connecticut today mandates attendance at school (or its equivalent, such as homeschooling that offers "instruction in the studies taught in the public schools") from ages five to eighteen.

.

6 when the legislature began to exempt a child from vaccination upon a parent's or

guardian's submission of "a statement . . . that such vaccination would be

contrary to the religious beliefs of such child." 1959 Conn. Pub. Acts ch. 588, § 1.

Unlike many other States, Connecticut has never allowed students or their

parents to claim exemption from vaccination on the basis of non-religious

personal beliefs. See generally Elena Conis & Jonathan Kuo, Historical Origins of

the Personal Belief Exemption to Vaccination Mandates: The View from California, 76 J.

Hist. Med. & Allied Scis. 167, 172 (2021). 2

In recent years, Connecticut has witnessed declines in the proportion

of schoolchildren who are immunized against contagious diseases, particularly

measles. During the 2012-2013 school year, 97.1% of the State's kindergartners

received a full course of vaccines against measles, mumps, and rubella ("MMR").

By the 2019-2020 school year, however, the rate had dropped to 96.2% (92.1% in

2 Non-religious personal beliefs encompass such views as that vaccines pose immediate or long-term risks to individuals' physical and mental health, vaccine- preventable illnesses are rare, and people should be allowed to decide for themselves whether to receive vaccination. As of May 2022, only fifteen States allowed non- religious personal beliefs of this sort to serve as grounds for exemption from vaccination. See National Conference of State Legislatures, States with Religious and Philosophical Exemptions from School Immunization Requirements, https://www.ncsl.org/health/states-with-religious-and-philosophical-exemptions-from- school-immunization-requirements (last updated May 25, 2022).

7 private schools). With 527,829 students enrolled in public schools across the

State in kindergarten through twelfth grade that school year, and taking private

school enrollment into account, the total number of unvaccinated students

approached or exceeded 20,000. See Conn. Dep't of Educ., Enrollment Report,

EdSight, https://public-edsight.ct.gov/Students/Enrollment-

Dashboard/Enrollment-Report-Legacy?language=en_US (last visited Aug. 3,

2023).

Of particular concern to public health officials and legislators was

the fact that unvaccinated students were not evenly distributed throughout the

State. In the 2019-2020 school year, some 22% of the 544 schools enrolling thirty

or more kindergartners had MMR vaccination rates below 95%.3 Twenty-six

schools had rates below 90%.4 The Centers for Disease Control and Prevention

3 See Testimony Presented Before the Public Health Committee by Acting Commissioner Deidre S. Gifford, H.B. 6423, S.B. 568, 2021 Sess., at 4 (Conn. 2021), https://www.cga.ct.gov/2021/PHdata/Tmy/2021HB-06423-R000216-Department of Public Health-TMY.PDF (hereinafter "DPH Testimony"). 4 See Connecticut General Assembly House Proceedings, H.B. 6423, 2021 Sess., at 966 (Conn. 2021) (hereinafter "House Proc."); Connecticut General Assembly Senate Proceedings, H.B. 6423, 2021 Sess., at 671 (Conn. 2021) (hereinafter "Senate Proc."). Both the House and Senate proceedings are contained in the full legislative history of the Act available at https://ctatatelibrarydata.org/wp-content/uploads/lh- bills/2021_PA6_HB6423.pdf. In citing the House and Senate proceedings, we refer to the continuous pagination inserted into this PDF document by the Connecticut State Library. See also DPH Testimony at 4.

8 recommends that "at least 95% of school students need to be vaccinated against

measles" to maintain community immunity. DPH Testimony at 4. 5

As the rate of vaccination against MMR and other vaccine-

preventable diseases was declining, the percentage of Connecticut

kindergartners whose families claimed exemption from vaccination on religious

grounds was on the rise. In school year 2012-2013, 1.4% of kindergartners were

exempt from one or more vaccinations on account of religious objections; in

school year 2018-2019, the percentage rose to a high of 2.5%, before dropping

slightly, to 2.3%, in school year 2019-2020. The overall trend was toward an

increase in religious exemptions.6 In contrast, the percentage of Connecticut

kindergartners claiming a medical exemption from vaccination remained

roughly constant, at 0.2-0.3%, over the same period.

5 "Community immunity," sometimes also called "herd immunity," is the phenomenon that occurs when "a sufficient proportion of a population is immune to an infectious disease (through vaccination and/or prior illness) to make its spread from person to person unlikely." Centers for Disease Control and Prevention, Glossary, Vaccines and Immunizations, https://www.cdc.gov/vaccines/terms/glossary.html (last visited Aug. 3, 2023). 6 Indeed, even as the rate of religious exemptions declined slightly for kindergartners in school year 2019-2020, 3% of students enrolled in prekindergarten programs claimed a religious exemption that school year -- the highest percentage of any grade level. See DPH Testimony at 6.

9 Faced with this data, and troubled that declining rates of vaccination

would leave Connecticut students and the broader public vulnerable to

outbreaks of disease, the Connecticut General Assembly took up the legislation

that would become Public Act 21-6.

In doing so, Connecticut was following in other States' footsteps.

West Virginia has never offered a religious exemption from school immunization

mandates. There, exemptions are available only upon presentation of "the

certification of a licensed physician stating that the physical condition of the

child is such that immunization is contraindicated or there exists a specific

precaution to a particular vaccine."

(West). See

Workman,

(rejecting Free Exercise Clause challenge). In

Mississippi, more than four decades ago, the state high court struck down a

provision limiting religious exemptions to those who could prove, by presenting

a certificate issued by a "recognized denomination," that they "are bona fide

members of a recognized denomination whose religious teachings require

reliance on prayer or spiritual means of healing." Brown v. Stone,

(Miss. 1979) (quoting Miss. Code. Ann. § 41-23-37 (1972 Supp.)). The

legislature never replaced the invalidated provision, and until July 15, 2023,

10 exemptions were only available when "offered on behalf of a child by a duly

licensed physician" and "accepted by the local health officer when, in his opinion,

such exemption will not cause undue risk to the community." Miss. Code. Ann.

§ 41-23-37 (West). See generally James Colgrove & Abigail Lowin, A Tale of Two

States: Mississippi, West Virginia, and Exemptions to Compulsory School Vaccination

Laws, 35 Health Affs. 348, 349-51 (2016). 7

More recently, three States preceded Connecticut in repealing

religious or philosophical exemptions from school immunization requirements.

California did so in 2015; Maine and New York followed suit in 2019. See 2015

Cal. Legis. Serv. ch. 35 (West) (amending

et

7 This year, a court in the Southern District of Mississippi entered a preliminary injunction requiring state officials to "develop a process by which persons may request a religious exemption from the Compulsory Vaccination Law." Bosarge,

, at *17. State officials complied, see No. 22-cv-233, Dkt. 82 (S.D. Miss. July 7, 2023), and the case is set for trial on April 1, 2024, see

Dkt. 79. Bosarge is an outlier among school vaccination cases, however, because the Mississippi Attorney General conceded that the state's vaccination mandate "would substantially burden the rights of some people with sincerely-held religious objections" under Mississippi's Religious Freedom Restoration Act ("MRFRA") but argued that MRFRA, independently of the Free Exercise Clause, required the state to provide religious exemptions because the vaccination mandate could not satisfy strict scrutiny. Bosarge,

, at *7-8. The court rejected the Attorney General's argument and held that plaintiffs had demonstrated a likelihood of success on their free exercise claim. See

. In a single paragraph, the court concluded that "[b]ecause the evidence shows that there was a method by which Mississippi officials could consider secular exemptions . . . the Compulsory Vaccination Law would not be neutral or generally applicable."

.

11 seq.); 2019 N.Y. Sess. Laws ch. 35 (McKinney) (amending

(9)); 2019 Me. Legis. Serv. ch. 154 (West) (amending Me. Rev. Stat. Ann. tit.

20-A, §§ 6355, 6358, 6359; tit. 22, §§ 802, 8402). 8 Courts have upheld the

California and New York laws against Free Exercise Clause challenges. See

Whitlow, 203 F. Supp. 3d at 1086-87; Love,

; F.F., 143

N.Y.S.3d at 742.9

B. The Legislative Record

As in these other States, the Act was not adopted without

controversy. The legislative record reflects a spirited debate that unfolded over

several years. At public hearings in February 2021, some 2,000 individuals

requested to testify concerning what were then two identical pieces of legislation,

House Bill 6423 and Senate Bill 568. The legislature's joint Public Health

8 A recent report of the Centers for Disease Control and Prevention indicates that kindergartners in these States, along with West Virginia and Connecticut, have some of the highest rates of MMR vaccination. See Ranee Seither et al., Vaccination Coverage with Selected Vaccines and Exemption Rates among Children in Kindergarten -- United States, 2021- 22 School Year, Morbidity & Mortality Wkly Rep. (Jan. 13, 2023), https://www.cdc.gov/mmwr/volumes/72/wr/mm7202a2.htm?s_cid=mm7202a2_w. 9 A challenge to Maine's statute is pending. See Fox v. State of Maine et al., No. 22- cv-251 (D. Me. Aug. 17, 2021). Defendants in the Maine case have withdrawn portions of their motions to dismiss in light of the First Circuit's decision in Lowe v. Mills,

(1st Cir. 2023), which reversed and remanded the dismissal of a complaint alleging that a vaccination mandate for Maine healthcare workers violated the Free Exercise Clause.

12 Committee heard from approximately 250 speakers over a twenty-four-hour

period. Members of the public submitted more than 1,700 written comments.

Some 95% of those who spoke and submitted comments opposed the Act. In the

minority, however, were numerous public health agencies and associations,

including the Connecticut Department of Public Health, the Connecticut

Hospital Association, the Connecticut Children's Medical Center, and the

Connecticut Nursing Association, which all advocated in favor of the Act.

In the State House of Representatives, the final debate, which began

on April 19, 2021, ran for more than fifteen hours and concluded well past

midnight. The Act's primary sponsor referred to "a clear trend over the past

decade towards higher levels of religious exemptions resulting in as many as a

hundred schools at any given time with vaccination rates below the community

immunity threshold." House Proc. at 791. Other proponents said that the Act

would prevent "a real public health crisis, just over the horizon."

.

Opponents predicted that the Act would create "religious refugees," id. at 909;

said that it would "segregat[e]" and "separat[e]" families, especially those with

some, but not all, children already in school, id. at 868; and worried that it would

worsen food insecurity by prohibiting students from not only attending school

13 but also receiving free or subsidized meals, id. at 1215-16. Some opponents

expressed concern about the Act's "legacy" provision, which provided that

certain children who were already enrolled in school and had previously been

granted religious exemptions would remain exempt. 10 According to these

opponents, the inclusion of the legacy provision in the bill undermined the

notion that Connecticut was facing a public health emergency. Other opponents

argued that students who are unvaccinated due to medical contraindication pose

the same public health risk as those who receive religious exemptions. 11

During the debate, the House amended the legislation twice. The

original version of the Act made legacy exemptions available only to students in

the seventh and later grades, but the House voted to extend the legacy provision

10 Both sets of parties, as well as members of the General Assembly, referred to this provision as the "grandfather clause." 11 The legislative history includes numerous references to a third category of individuals, those who are "noncompliant" with Connecticut's mandated schedule of vaccines. Some legislators expressed the view that the Act permitted noncompliant students to remain unvaccinated while mandating vaccination for those who sought religious exemptions. As the Act's sponsor in the Senate explained, however, noncompliant students are those who have developed a plan with their healthcare provider to catch up on missed vaccines. The Act expressly permits healthcare providers to certify that "initial immunizations have been given . . . and additional immunizations are in process." Public Act 21-6 § 1(a)(1). Other than its medical exemptions and legacy provision, the Act does not allow unvaccinated students to enroll or remain enrolled in school without presenting such a certificate.

14 to those enrolled in kindergarten through sixth grade as well. A second

amendment clarified that students with religious exemptions would not lose

them if they moved from one Connecticut school to another. The amended

legislation passed the House, 90-53.

A similar debate unfolded when the State Senate convened to

consider the Act on April 27, 2021. Proponents again stated that the Act's

purpose was to proactively protect public health in the face of declining

vaccination rates; a supporter called it "a very modest and highly incremental

response to a major crisis in public health and a major public health problem."

Senate Proc. at 788-89; see also id. at 616 (alluding to "the significant vulnerability

present in our schools and communities"), 707 ("[W]e are supposed to make

policies to prevent illnesses"). Opponents raised many of the same objections as

in the House, with one senator calling the Act "fundamentally wrong, immoral

and I would say even anti American." Id. at 636. Although senators proposed

four further amendments, none passed. The Senate adopted the legislation, 22-

14. Governor Ned Lamont signed it the following day, April 28, 2021, and nearly

15 all provisions of the Act became effective immediately upon the Governor's

signature. See Public Act 21-6 §§ 1-9, 12.12

C. Public Act 21-6

The Act amended vaccination requirements scattered across several

titles of the Connecticut General Statutes. As to children enrolled in public and

nonpublic schools, the Act repealed the exemption from immunization for

children whose parents present "a statement . . . that such immunization would

be contrary to the religious beliefs of such child or the parents or guardians of

such child."

-204a (2020). The Act did not repeal the

exemptions for students who present "a certificate . . . from a physician,

physician assistant or advanced practice registered nurse stating that in the

opinion of such physician, physician assistant or advanced practice registered

nurse such immunization is medically contraindicated because of the physical

condition of such child," or who provide documentation that they had had a

confirmed case of, or were too old to receive immunization against, certain

diseases. Public Act 21-6 § 1(a)(2)-(5). As amended, the Act provided that

12 As described further below, sections 10 and 11 of the Act require that certain insurance plans cover extended consultations between patients and medical providers concerning vaccination. These provisions took effect January 1, 2022. See Public Act 21- 6 §§ 10-11.

16 children enrolled in kindergarten through twelfth grade who had been

previously granted religious exemptions would remain exempt. See id. § 1(b).

The Act did not, however, extend the same accommodation to students in

preschool and prekindergarten programs. See id. § 1(c). As Connecticut had

done since 1882, the Act required that local or regional boards of education

provide vaccinations free of charge to those unable to pay. See id. § 1(d); see also

1882 Conn. Pub. Acts ch. 135, § 1. It did not change the schedule of required

immunizations, which is determined by Connecticut's Commissioner of Public

Health. Public Act 21-6 § 1(e).13

Other provisions of the Act concerned students enrolled in public

and private institutions of higher education, as well as children who attend

childcare centers and group childcare homes. Id. §§ 3-6. Broadly speaking, the

Act treated college and university students the same as those enrolled in

kindergarten through twelfth grade: It permitted those who had previously been

granted religious exemptions to remain exempt, but it provided that new

exemptions would be granted only for medical contraindication. Id. §§ 3(b), 4.

13 The Act became law during the COVID-19 pandemic, and the legislative debates are replete with references to COVID-19. Nevertheless, as we explain further below, the Act did not mandate vaccination against COVID-19. At the time the legislature passed the Act, COVID-19 vaccines were not authorized for all children.

17 As to participants in childcare programs, the Act contained a legacy provision for

children enrolled in kindergarten through twelfth grade. Id. §§ 5(b)(2)-(3),

6(g)(2)-(3).

Because the Act makes vaccination or exemption a condition of

enrollment in any licensed Connecticut school, institution of higher education, or

childcare program, unvaccinated children who do not qualify for a medical

exemption or the legacy provision may not attend.

The Act contained several miscellaneous provisions relevant to this

appeal. In setting forth the contents of the certificates of medical exemption that

healthcare providers may issue, the Act broadened the grounds on which a

provider may determine that a vaccine is contraindicated for a patient. Id. § 7.

These grounds may now include reasons that are "not recognized by the

National Centers for Disease Control and Prevention" but that nevertheless, "in

[the provider's] discretion," constitute contraindication. Id. The Act also

established within the Connecticut Department of Public Health an Advisory

Committee on Medically Contraindicated Vaccinations, which among other

responsibilities is charged with ensuring consistency in the administration of

medical exemptions as well as offering continuing education for medical

18 providers. Id. § 8. The Act required state officials to collect data concerning

exemptions and report annually to relevant committees of the General Assembly.

Id. § 9. And to educate the public about the benefits of vaccines, the Act

mandated that certain individual and group health insurance plans cover "at

least a twenty-minute consultation" between medical providers and persons

eligible to be vaccinated. Id. §§ 10-11.

II. The Parties and Prior Proceedings

On April 30, 2021, two days after Governor Lamont signed the Act,

plaintiffs commenced this lawsuit. Plaintiffs include two not-for-profit

organizations: We The Patriots USA, Inc., and CT Freedom Alliance, LLC are

public interest organizations dedicated to advocating for constitutional rights,

including religious freedom (the "Organizational Plaintiffs"). Plaintiffs also

include three individuals who each have at least one child who must be

vaccinated to attend school under the Act (the "Individual Plaintiffs").

The Individual Plaintiffs object to vaccination on religious grounds;

some of the specific reasons vary from individual to individual, but they all

object to the use of "cell lines descended from aborted fetuses" in the research,

development, testing, and production of vaccines. App'x at 41. Constantina

19 Lora, a Greek Orthodox Christian, is the parent of a preschooler in Bethel,

Connecticut, as well as of middle and high school students who have legacy

exemptions. Lora and her family moved from New York to Connecticut after

New York repealed its religious exemption. Miriam Hidalgo is a Roman

Catholic and the parent of two children in Glastonbury, Connecticut. In fall 2021,

her children became eligible for preschool. Pursuant to Hidalgo's religious

beliefs, she and her spouse are raising their children as vegans; they object to

vaccines that contain cells from animals. Asma Elidrissi, a Muslim, is the parent

of two children in Stamford, Connecticut. When the Act took effect, one of her

children had not completed registering for kindergarten; the other was eligible

for preschool beginning in fall 2021. Elidrissi and her spouse object to

vaccinating their children on two religious grounds not shared by the other

plaintiffs. First, they abstain from consuming pork products, which they allege

are used as a stabilizer in some vaccines. Second, after one of Elidrissi's children

received the MMR vaccine, he developed "serious symptoms and ultimately a

speech and learning disorder for which he now receives special services." App'x

at 44. Elidrissi holds a religious belief that harming children is morally wrong,

20 and she objects to vaccinating her children further because of the harm she

alleges the previous vaccine caused. Id.

Plaintiffs named six defendants. Three of them are state agencies:

the Connecticut Office of Early Childhood Development, the Connecticut State

Department of Education, and the Connecticut Department of Public Health (the

"State Agency Defendants"). The other three are the local school boards in

Bethel, Glastonbury, and Stamford (the "School Board Defendants").

Plaintiffs sought declaratory and injunctive relief, along with

attorney's fees. The complaint enumerated five counts. Plaintiffs contended the

Act violates (1) the Free Exercise Clause of the First Amendment; (2) a right to

privacy and medical freedom that plaintiffs argued is implied in the First,

Fourth, Fifth, and Fourteenth Amendments; (3) the Equal Protection Clause of

the Fourteenth Amendment; and (4) the liberty interest in childrearing implicit in

the Due Process Clause of the Fourteenth Amendment. Plaintiffs brought these

four counts against all defendants. The complaint's fifth and final count,

claiming that the Act violates the IDEA, was brought by Elidrissi alone against

the State Agency Defendants and the Stamford Board of Education.

21 In the district court, the State Agency Defendants requested a pre-

filing conference, which the court held on June 30, 2021. Plaintiffs declined the

district court's invitation to amend the complaint following the pre-filing

conference. Defendants subsequently moved to dismiss the complaint under

Federal Rules of Civil Procedure 12(b)(1) and (6). The State Agency Defendants

argued that the first four counts of the complaint should be dismissed as to them

on sovereign immunity grounds; all the claims of the Organizational Plaintiffs

should be dismissed for lack of standing; and all five counts should be dismissed

for failure to state a claim. The Glastonbury Board of Education moved to

dismiss the first four counts for failure to state a claim. The Bethel and Stamford

Boards of Education joined the State Agency Defendants' motion to dismiss,

except as to the State Agency Defendants' assertion of immunity under the

Eleventh Amendment.

On January 11, 2022, the district court issued an extensive order

granting defendants' motions to dismiss. See We The Patriots USA, Inc. v. Conn.

Office of Early Childhood Dev.,

(D. Conn. 2022). The district

court dismissed the first four counts of the complaint as to the State Agency

Defendants, concluding that they are immune from suit under the Eleventh

22 Amendment; moreover, it denied plaintiffs' request for leave to amend the

complaint to name agency officials, rather than the agencies themselves, as

defendants. Separately, the district court dismissed all claims brought by the

Organizational Plaintiffs, holding that they had not met the constitutional

requirements for associational standing.14 These rulings did not preclude the

14 We do not reach the district court's disposition of these jurisdictional issues because plaintiffs agree that the district court properly applied binding precedent in deciding that the State Agency Defendants are immune from suit under the Eleventh Amendment and because the issue is mooted by the fact that the district court dismissed on the merits all four counts of the complaint brought by the Organizational Plaintiffs and we are affirming that portion of the district court's ruling. We note, however, that one of the reasons the district court gave for its decision to deny leave to amend the complaint was that, at the time it decided the motion to dismiss, its individual rules of practice warned that the court "ordinarily will not grant leave to amend" where a plaintiff chooses not to amend a complaint after learning of grounds for dismissal at a pre-filing conference. Pretrial Preferences, U.S. Dist. Ct. Dist. of Conn. (Jan. 24, 2022), https://www.ctd.uscourts.gov/content/janet-bond-arterton [https://web.archive.org/web/20220124064903/https://ctd.uscourts.gov/content/janet- bond-arterton]; see also We The Patriots USA, Inc., 579 F. Supp. 3d at 300 n.5. The district court subsequently amended its rules, which now provide that "[a]t the pre-filing conference, the plaintiff will be given leave to amend the complaint to address issues that will be the subject of a motion to dismiss." Pretrial Preferences, U.S. Dist. Ct. Dist. of Conn., https://www.ctd.uscourts.gov/content/janet-bond-arterton (last visited Aug. 3, 2023). As an alternative basis for its decision, the district court concluded that amendment would be futile because it dismissed all counts of the complaint on the merits. See We The Patriots USA, Inc., 579 F. Supp. 3d at 300 n.5. We have cautioned that individual rules of practice may not contravene federal procedural rules. See Fruit of the Loom, Inc. v. Am. Marketing Enters., Inc.,

(2d Cir. 1999). In Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,

(2d Cir. 2015), we ruled that a district court may not deny a plaintiff leave to replead on the ground that the plaintiff failed to take advantage of the opportunity to do so before learning how the district court would rule on the defendant's motion to dismiss. The court's denial of leave in this case was impermissible for the same reason. The error

23 district court from reaching the merits of the complaint's five claims, all of which

the court dismissed under Federal Rule of Civil Procedure 12(b)(6). Judgment

was entered the following day. Plaintiffs timely filed their notice of appeal.

Following oral argument, we held this case in abeyance pending the

decision of another panel of this Court in M.A. v. Rockland County Department of

Health,

(2d Cir. 2022) ("Rockland County"). As we describe more fully

below, Rockland County involved a Free Exercise Clause challenge to a set of

emergency orders issued by county officials in response to an outbreak of

measles. The panel issued its decision on November 9, 2022. We ordered the

parties to submit supplemental briefing as to the effect of the Rockland County

decision on this case, and we have now considered those submissions.

DISCUSSION

We review de novo the district court's dismissal of each of the

complaint's five claims pursuant to Federal Rule of Civil Procedure 12(b)(6),

"accepting as true all facts alleged in the complaint and drawing all reasonable

inferences in favor of" plaintiffs. Phillips,

. To overcome a motion

to dismiss for failure to state a claim, a plaintiff's complaint "must contain

was harmless, however, because as we discuss below, the court properly dismissed those counts on the merits and amendment would indeed have been futile.

24 sufficient factual matter . . . to state a claim to relief that is plausible on its face."

Ashcroft v. Iqbal,

(2009) (citing Bell Atl. Corp. v. Twombly,

(2007)). A claim is plausible "when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Iqbal,

(citing Twombly,

). The plaintiff must offer more than facts suggesting a "sheer possibility" the

defendant is liable, or facts that are "merely consistent with" that conclusion.

(quoting Twombly,

).

We begin with plaintiffs' challenge to the Act under the Free

Exercise Clause, which is the gravamen of the complaint. We then turn to

plaintiffs' other constitutional claims. Finally, we address Elidrissi's claim under

the IDEA.

I. The Free Exercise Claim

A. Applicable Law

1. Incidental Burdens on Religious Exercise

Under the Free Exercise Clause, which the Fourteenth Amendment

incorporated as to the States, see Cantwell v. Connecticut,

(1940), the government may sometimes burden the external practice of religion.

25 In Employment Division, Department of Human Resources of Oregon v. Smith,

(1990), the Supreme Court reaffirmed that a law that incidentally

burdens religious exercise is constitutional when it (1) is neutral and generally

applicable and (2) satisfies rational basis review. If the law is not neutral or not

generally applicable, it is subject to strict scrutiny, and the burden shifts to the

government to establish that the law is narrowly tailored to advance a

compelling government interest. See Tandon v. Newsom,

(2021) (per curiam); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993).

The Court traced the principle animating Smith back to the late

nineteenth century, collecting a series of cases that "consistently held that the

right of free exercise 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 his religion prescribes (or proscribes)."

Smith,

(internal quotation marks and citation omitted); see also

at 879-80 (citing Reynolds v. United States,

(1878); United States v. Lee,

(1982); Minersville School Dist. Bd. of Educ. v. Gobitis,

(1940); Prince v. Massachusetts,

(1944); Braunfeld v. Brown,

(1961) (plurality opinion); Gillette v. United States,

(1971)).

A law is not neutral under Smith if the government "proceeds in a

manner intolerant of religious beliefs or restricts practices because of their

religious nature." Fulton v. City of Philadelphia,

, 1877 (2021)

(citation omitted). A law may fail the neutrality prong either facially, that is, "if it

explicitly singles out a religious practice," or on account of improper legislative

intent, that is, "if it targets religious conduct for distinctive treatment." We The

Patriots USA, Inc. v. Hochul,

, 281 (2d Cir. 2021) ("Hochul") (per

curiam) (internal quotation marks omitted), opinion clarified,

(2d Cir.

2021), cert. denied sub nom. Dr. A v. Hochul,

(2022). To fail the

neutrality prong, it is not enough for a law to simply affect religious practice; the

law or the process of its enactment must demonstrate "hostility" to religion. See,

e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rts. Comm'n,

(2018). The Supreme Court has stressed, however, that even "subtle departures

from neutrality" violate the Free Exercise Clause, and thus "upon even slight

suspicion that proposals for state intervention stem from animosity to religion or

distrust of its practices, all officials must pause to remember their own high duty

27 to the Constitution and to the rights it secures."

at 1731 (quoting Church of

Lukumi Babalu Aye,

) (internal quotation marks omitted). To

determine whether the government has acted neutrally, courts look to factors

such as the background of the challenged decision, the sequence of events

leading to its enactment, and the legislative or administrative history. See

(summarizing Church of Lukumi Babalu Aye,

)).

A law is generally applicable when it treats similar conduct

similarly, without regard to whether the conduct is religiously motivated. The

Supreme Court has explained that a law is not generally applicable in at least two

circumstances: first, where it "invites the government to consider the particular

reasons for a person's conduct by providing a mechanism for individualized

exemptions," and second, where it "prohibits religious conduct while permitting

secular conduct that undermines the government's asserted interests in a similar

way." Fulton,

(internal quotation marks omitted). We have

described this second inquiry in terms of whether a law is "substantially

underinclusive such that it regulates religious conduct while failing to regulate

secular conduct that is at least as harmful to the legitimate government interests

purportedly justifying it." Hochul, 17 F.4th at 284 (quoting Cent. Rabbinical Cong.

28 of U.S. & Canada v. N.Y.C. Dep't of Health & Mental Hygiene,

(2d

Cir. 2014)).

In a series of decisions about limitations on the operation of houses

of worship during the COVID-19 pandemic, the Supreme Court clarified how

courts should determine whether a challenged law is generally applicable. Most

relevant here, the Court held that regulations "are not neutral and generally

applicable, and therefore trigger strict scrutiny under the Free Exercise Clause,

whenever they treat any comparable secular activity more favorably than

religious exercise." Tandon,

. "[W]hether two activities are

comparable for purposes of the Free Exercise Clause must be judged against the

asserted government interest that justifies the regulation at issue, . . . [and] not

the reasons why people gather." Id.

2. Vaccination Mandates

Both the Supreme Court and this Court have considered whether

vaccination mandates violate the Constitution. 15 The earliest such case, Jacobson

v. Massachusetts, held that a state's police power included the capacity to

15 So has the Connecticut Supreme Court, which upheld an early predecessor of the Act against challenges under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. See Bissell v. Davison,

(Conn. 1894).

29 mandate vaccination against smallpox for all adult residents who were "fit

subject[s] of vaccination."

(1905). Jacobson, which concerned a

criminal penalty the town of Cambridge imposed on those who refused

vaccination, "pre-dated the modern tiers of scrutiny" but "essentially applied

rational basis review." Roman Cath. Diocese of Brooklyn v. Cuomo,

(2020) (Gorsuch, J., concurring). In Zucht v. King,

(1922), the

Supreme Court upheld a city ordinance requiring that children be vaccinated

before attending any school, public or private. In Prince v. Massachusetts, which

followed the incorporation of the First Amendment against the States, the

Supreme Court considered a Free Exercise Clause challenge to child labor laws.

See

. Citing Jacobson, the Court commented in dictum that a

parent "cannot claim freedom from compulsory vaccination for the child more

than for himself on religious grounds. 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."

.

Recent cases of this Court, many of which have applied the Smith

test, have reached similar conclusions. In Phillips, we held that "mandatory

vaccination as a condition for admission to school does not violate the Free

30 Exercise Clause."

. During the recent pandemic, we denied under

Smith a request to preliminarily enjoin a regulation, which lacked a religious

exemption, requiring healthcare workers to be vaccinated against COVID-19. See

Hochul, 17 F.4th at 273-74. In Goe, we decided that because the federal

Constitution confers no fundamental right to an education, rational basis review

applied to a regulation limiting medical exemptions to school immunization

requirements to cases where physicians identified a contraindication or

precaution that was consistent with nationally recognized medical standards.

See

.

Most recently, we considered a county executive's emergency

declaration mandating that, during an outbreak of measles, unvaccinated

children be excluded from places of public assembly, including schools. See

Rockland County,

. The emergency declaration exempted children

whose physicians confirmed that they were immune from the disease or

medically unable to receive vaccination.

The plaintiffs, who objected to

vaccination on religious grounds, claimed that the emergency declaration

violated the Free Exercise Clause because it targeted them on account of their

beliefs.

. The defendants, the county health department and various

31 county officials, moved for summary judgment, which the district court granted.

See W.D. v. Rockland County,

, 371 (S.D.N.Y. 2021). Applying

Smith, the district court held that the emergency declaration was neutral and

generally applicable; it also held that the declaration satisfied rational basis

review.

.

We reversed because we found there were disputes of material fact

as to at least three issues: (1) whether county officials acted out of anti-religious

animus, (2) whether there were children in the county who were unvaccinated

for reasons other than religious objection or medical contraindication, and

(3) what the county's purpose was in enacting the emergency declaration. See

Rockland County,

. As to Smith's neutrality prong, we held that a

reasonable juror could find that the county officials acted out of animus.

. As to the general applicability prong, we decided that the defendants

presented insufficient evidence about the purpose and scope of the emergency

declaration.

.16 Our decision in Rockland County did not, however,

reach the constitutional question that case and this one share.

16 Judge Park concurred. He agreed that the district court had erred in granting summary judgment. Rather than remanding, however, Judge Park would have applied "Smith to facts not in dispute" to find that "the Emergency Declaration was neither neutral nor generally applicable." Rockland County,

(Park, J., concurring).

32 B. Application

The district court dismissed plaintiffs' free exercise challenge for

failure to state a claim, on two grounds. First, the district court held that our

precedents, especially Phillips and Hochul, foreclose plaintiffs' claim. Second, the

district court also concluded that, even if that were not the case, the Act is subject

to and passes rational basis review under Smith.

Plaintiffs' free exercise challenge presents a question of first

impression for this Court: whether a State, having previously accommodated

religious objections to vaccination by providing a mechanism for objectors to

obtain exemptions, may repeal that mechanism without offending the Free

Exercise Clause.17 We conclude that the Act satisfies both prongs of the Smith

test and also satisfies rational basis review.

Judge Park noted that New York repealed its religious exemption following the events at issue in Rockland County but that this Court has not considered whether the revised vaccination mandate is constitutional. See

. He also urged that Smith be overruled.

. 17 Although our decision in Phillips contains persuasive dictum, we decided that case before New York repealed its religious exemption, and the issue there concerned only the temporary exclusion of unvaccinated children from school during an emergency. See

. In Hochul, a draft of the challenged regulation contained a religious exemption, but the final regulation did not, so there was no repeal of a previously enacted exemption. See 17 F.4th at 282-83. Moreover, Hochul denied preliminary injunctive relief and thereby considered only the plaintiffs' likelihood of success on the merits; it did not definitively resolve the merits of the controversy. Id. at

33 1. Neutrality

We begin with neutrality. The Act's legislative history does not

contain evidence of hostility to religious believers, even when read with an eye

toward "subtle departures from neutrality" or "slight suspicion" of "animosity to

religion or distrust of its practices." Masterpiece Cakeshop,

.

Although plaintiffs contend in their supplemental brief that they find "implicit

hostility" in the legislative debate, they have not pointed to any specific

expressions of animus. Appellants' Suppl. Br. at 8; see also Appellants' Br. at 29.

Nor did plaintiffs make such a claim before the district court. See We The Patriots

USA, Inc., 579 F. Supp. 3d at 306 ("Plaintiffs have not advanced an argument that

P.A. 21-6 was motivated by any religious animus and the legislative history

suggests, as Defendants argue, that the enactment of this law was based upon

declining student vaccination rates.").

286-88. Goe concerned the criteria for medical exemptions, not the availability of religious exemptions. See

. And as we discuss further below, Rockland County is factually distinguishable from this case: It concerned a temporary measure undertaken in the context of an outbreak of contagious disease; it involved plausible allegations that government officials acted with anti-religious animus; and the scope of those affected by the county's emergency declaration was unclear. Rockland County may have permitted children to remain unvaccinated on the basis of non-religious personal beliefs, but Connecticut law has never done so. See

.

34 Both houses of the General Assembly debated the Act respectfully,

albeit vigorously. Many of the Act's proponents acknowledged the impact it

would have on children and families who hold religious objections to vaccination

but balanced that impact against the risks to public health. See F.F., 143 N.Y.S.3d

at 741 (noting that to "highlight the tension between public health and socio-

religious beliefs" does not constitute anti-religious animus). To the extent the

debate contained intemperate language, it was more on the part of legislators

who denounced the Act because it was "fundamentally wrong, immoral, and I

would say even anti American," Senate Proc. at 636; it would create "even more

segregation in the state of Connecticut," House Proc. at 892; or it would turn

families into "religious refugees," id. at 911.

Far from expressing hostility, legislators accommodated religious

objectors to an extent the legislators believed would not seriously undermine the

Act's goals. Four accommodations deserve particular mention. Most significant

is the legacy provision. The Department of Public Health expressed concern

about this provision in written testimony before the General Assembly's Public

Health Committee. See DPH Testimony at 5. Yet, contrary to the department's

advice, the legislature expanded the legacy provision to include students

35 enrolled in kindergarten and above. Indeed, some legislators who opposed the

final version of the Act supported the amendment that extended the legacy

provision to younger children. Proponents recognized that expanding the legacy

provision at a time when vaccination rates for kindergartners had dipped

substantially "represents some measure of risk" even as it also "postpones . . . a

day of reckoning" for some families. House Proc. at 809. Second, another

amendment the legislature adopted made explicit that legacy students would not

be required to be vaccinated if they changed schools.

Next, the legislature crafted some of the Act's provisions to make it

less difficult for families to obtain medical exemptions if a healthcare provider

finds vaccination to be medically contraindicated. Recognizing that some

families were unable to obtain a medical exemption under Connecticut's

previous, stricter regime, the legislature redefined the medical exemption to

encompass contraindications not enumerated by federal public health agencies.

See Public Act 21-6 § 7. Finally, the legislature recognized that some families

declined vaccination because they did not have access to adequate information

about its benefits and risks. In the Act, therefore, the legislature required that

36 many insurance plans cover longer consultations between families and

healthcare providers. See id. §§ 10-11.

These provisions demonstrate the legislature's solicitude for the

concerns of religious objectors.18 That the legislature declined to pursue other,

even broader accommodations does not detract from the accommodations it did

provide. For example, the House of Representatives defeated a proposed

amendment that would have preserved the religious exemption for nonpublic

schools, colleges and universities, and childcare centers. The Senate voted

against an amendment that would have granted legacy status to students,

including out-of-state college students, who move to Connecticut after obtaining

religious exemptions in other States. While these and other proposals would

have made the Act less jarring in effect, the record contains no indication the

18 The dissent argues that the accommodations contained in the Act undermine the General Assembly's conclusion that the increasing prevalence of religious exemptions constituted a threat to the health and safety of students and the public. See post, at 16- 17. But on the dissent's logic, the Act would better withstand a free exercise challenge if it were less solicitous of religious concerns. That proposition is inconsistent with the principle that government may act with "benevolent neutrality" toward religion, see Walz v. Tax Comm'n of City of New York,

(1970), and cannot be the law. Moreover, as we discuss below, the accommodations the General Assembly provided struck a rational balance between the competing goods legislators were weighing.

37 legislature rejected them out of hostility to religion, rather than for reasons of

health and safety.

At bottom, plaintiffs' argument that the Act is not neutral under

Smith boils down to the proposition that repealing any existing religious

exemption is hostile to religion per se. See Appellants' Br. at 28-29. We find this

argument unpersuasive, for four reasons.

First, the Supreme Court has used a consistent cluster of terms to

describe the kind of official attitude that violates the neutrality prong of Smith --

"hostility," "animosity," "distrust," "a negative normative evaluation." Masterpiece

Cakeshop,

(quoting Church of Lukumi Babalu Aye,

). These terms denote a subjective state of mind on a government actor's part,

not the mere fact that government action has affected religious practice. Here,

the legislative record simply reveals no evidence of any such animus.

Second, we are persuaded to follow the common-sense approach of

the New York state courts that considered a Free Exercise Clause challenge to the

repeal of New York's religious exemption. These courts explained that, in

deciding whether the legislature's action was neutral, the law should be

considered "as a whole." F.F. ex rel. Y.F. v. State,

, 864 (Sup. Ct.

38 2019), aff'd sub nom. F.F. v. State,

(3d Dep't 2021); see also Hochul,

17 F.4th at 282 ("The absence of a religious exception to a law . . . does not, on its

own, establish non-neutrality such that a religious exception is constitutionally

required."). "That the Legislature repealed a previously authorized religious

exemption does not in and of itself transmute the law into a non-neutral law that

targets religious beliefs." F.F., 114 N.Y.S.3d at 864. Viewed in this light,

Connecticut's amended school immunization law mentions religion only to

provide legacy exemptions. It contains no suggestion of hostility to religion.

Third, the Supreme Court has long described religious exemptions

as part of a mutually beneficial "play in the joints" between the Establishment

Clause and Free Exercise Clause. Walz v. Tax Comm'n of City of New York,

(1970). As with many of the other exemptions that benefit

individuals and communities of faith -- not requiring religious organizations to

pay income and property tax, for instance -- the government may

constitutionally elect to accommodate religious believers but is not

constitutionally required to do so. See, e.g., Carson v. Makin,

(2022) (holding States need not subsidize private education, including private

religious schools, but must make any subsidies equally available to religious and

39 nonreligious schools). Plaintiffs' argument, which would make every exemption

permanent once granted, threatens to distort the relationship between the

Clauses. In this respect, we find persuasive the Tenth Circuit's analysis in

Yellowbear v. Lampert,

(10th Cir. 2014) (Gorsuch, J.), which concerned

a Wyoming prison's decision to discontinue allowing a Native American

prisoner to use a sweat lodge on prison property. "Surely the granting of a

religious accommodation to some in the past doesn't bind the government to

provide that accommodation to all in the future, especially if experience teaches

the accommodation brings with it genuine safety problems that can't be

addressed at a reasonable price."

.

Finally, adopting plaintiffs' rule would disincentivize States from

accommodating religious practice in the first place. See

Few reasonable

legislators or other government actors would be willing to tie the hands of

generations of their successors by enacting accommodations that could not be

repealed or changed if they no longer served the public good.

For all these reasons, we conclude, as a matter of law, that the Act is

neutral within the meaning of Smith.

40 2. General Applicability

We turn next to the question of general applicability, considering

both whether the Act contains "individualized exemptions" and whether it is

"substantially underinclusive." Hochul, 17 F.4th at 284.

a. Individualized Exemptions

The Act does not provide "a mechanism for individualized

exemptions," meaning that it does not give government officials discretion to

decide whether a particular individual's reasons for requesting exemption are

meritorious. Fulton, 141 S. Ct. at 1877 (citing Smith,

). The medical

exemptions the Act provides are instead mandatory and framed in objective

terms: A student "shall be exempt" if, for instance, the student "presents a

certificate . . . from a physician, physician assistant or advanced practice

registered nurse stating that in the opinion of such physician, physician assistant

or advanced practice registered nurse such immunization is medically

contraindicated because of the physical condition of such child." Public Act 21-6

§ 1(a)(2).19 Likewise, a student "shall be exempt" from immunization against

19 This language requires the healthcare provider to reach a determination about medical contraindication that is more certain than what at least one other State requires. In Does 1-3 v. Mills,

(2021), the Supreme Court declined to grant injunctive relief to healthcare workers challenging Maine's COVID-19 vaccination mandate.

41 measles, mumps, and rubella upon presentation of "a certificate from a

physician, physician assistant or advanced practice registered nurse or from the

director of health in such child's present or previous town of residence, stating

that the child has had a confirmed case of such disease."

§ 1(a)(3). In Hochul,

we joined other Circuits in holding that where a law "provides for an objectively

defined category of people to whom the vaccination requirement does not

apply," including a category defined by medical providers' use of their

professional judgment, such an exemption "affords no meaningful discretion to

the State." 17 F.4th at 289; see also Doe v. Bolton,

(1973) ("If a

physician is licensed by the State, he is recognized by the State as capable of

exercising acceptable clinical judgment.").

Plaintiffs are incorrect that the Act's requirement that specified

documents supporting requests for medical exemptions be acknowledged by,

inter alia, state and local officials affords such officials the discretion to approve

or deny exemptions on a case-by-case basis. See, e.g., Public Act 21-6 § 1(a)-(c).

As in Hochul, these elements of the Act's medical exemption regime do not allow

Dissenting, Justice Gorsuch criticized the Maine law for permitting medical providers to grant exemptions where immunization simply "may be" inapposite. Id. at 19 (Gorsuch, J., dissenting from denial of injunctive relief).

42 "the government to decide which reasons for not complying with the policy are

worthy of solicitude." 17 F.4th at 289 (quoting Fulton, 141 S. Ct. at 1879 (internal

quotation marks omitted)).

b. Substantial Underinclusiveness

The second way the Act might arguably fail the general applicability

prong calls for more complex analysis. As we have explained above, under this

prong the Act may not pass muster if it "prohibits religious conduct while

permitting secular conduct that undermines the government's asserted interests

in a similar way." Fulton, 141 S. Ct. at 1877. "[W]hether two activities are

comparable for purposes of the Free Exercise Clause must be judged against the

asserted government interest that justifies the regulation at issue . . . [and] not the

reasons why people gather." Tandon,

.

Therefore, we must first determine what interest Connecticut has

asserted justifies the Act, then decide whether permitting medical exemptions

and repealing religious exemptions promote the State's interest. We conclude

that the Act's purpose is "to protect the health and safety of Connecticut students

and the broader public," Appellees' Suppl. Br. at 9, and that medical but not

43 religious exemptions serve this interest. It is only at this stage of the analysis that

the dissent parts ways.

The State has described its interest in the Act in consistent terms

throughout the legislative process, before the district court, and on appeal. For

instance, the acting commissioner of the Department of Public Health testified

before the Public Health Committee that the legislation "outline[d] a plan to

strengthen the health of our school communities." DPH Testimony at 1. The

Act's proponent in the State Senate asked rhetorically, "Why this Bill now?", and

answered, "It is our obligation to protect the public health" in view of the rising

number of nonmedical exemptions. Senate Proc. at 615. Other legislators spoke

of the need to avoid "a real public health crisis," House Proc. at 847; said that

"good public health policy is, by definition, proactive not reactive," id. at 1001,

1167; and noted that "the nature of a public health approach is to prevent an

outbreak," id. at 1261. Upon signing the Act, Governor Lamont said that "[t]his

legislation is needed to protect our kids against serious illnesses that have been

well-controlled for many decades, such as measles, tuberculosis, and whooping

cough, but have reemerged." Office of the Governor, Governor Lamont Signs

Legislation Updating School Immunization Requirements (Apr. 28, 2021),

44 https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2021/04-

2021/Governor-Lamont-Signs-Legislation-Updating-School-Immunization-

Requirements.

At oral argument before the district court, defendants "maintained

that Connecticut's interest in P.A. 21-6 was to 'protect the health and safety of

Connecticut's schoolchildren.'" We The Patriots USA, Inc., 579 F. Supp. 3d at 307

(quoting Defs.' Mem. at 20). Although plaintiffs argued that the State had

framed its interest at too high a degree of generality, the district court concluded

that "the state legislators identified that the purpose of this law is to protect

community health and Plaintiffs make no showing that this interest is pretextual

or unwarranted." Id. at 307-08. On appeal, plaintiffs have not challenged these

findings of the district court, and at oral argument before us, the State reiterated

that its interest is in the "health and safety of the students." Recording of Oral

Arg. at 11:21-23; see also 19:34 ("the health and safety of the students is

paramount").

We conclude from the consistency of defendants' assertions that

there is no cause to fear that Connecticut or the district court has "restat[ed] the

State's interests . . . at an artificially high level of generality" to sidestep the

45 general applicability requirement. Mills,

(Gorsuch, J., dissenting);

see Rockland County,

(Park, J., concurring). Nor do we find any sign

that the State has offered for litigation purposes a post hoc rationalization of a

decision originally made for different reasons. See Does 1-3,

(Gorsuch, J., dissenting).20 We therefore turn to whether medical and religious

exemptions serve the State's interest in students' health and safety.

The district court found that while the Act's medical exemptions

further Connecticut's interest, maintaining the repealed religious exemption

would not. See We The Patriots USA, Inc., 579 F. Supp. 3d at 308. We agree.

In comparing the two types of exceptions, we must determine how

the Supreme Court's guidance in Tandon -- which concerned limits on religious

worship during the pandemic -- applies to the Act. In Hochul, we rejected

plaintiffs' argument that the Supreme Court's precedents "require[d] us to

confine our analysis to evaluating the risk of COVID-19 transmission posed by

20 The dissent faults Connecticut for, at times, "broaden[ing] [its] interest to include protecting the health and safety of the general public." Post, at 12. But it is not contradictory for the State to focus primarily on the health and safety of students while also acknowledging that the incidence of vaccine-preventable illness among students has implications for public health at large. "[T]he health of our school communities," DPH Testimony at 1, necessarily includes the health of persons other than students, including teachers, staff, parents, and members of the broader public.

46 each unvaccinated individual." 17 F.4th at 286. Instead, we highlighted the

Supreme Court's reference to "the risks posed by groups of various sizes in

various settings," concluding that this "suggests the appropriateness of

considering aggregate data about transmission risks." Id. at 287. Indeed, when in

Tandon, the Court discussed "the risks various activities pose," 141 S. Ct. at 1296,

the "activities" in question were not individual behaviors but instead

aggregations of individual behavior -- gatherings that were religious or secular,

private or commercial -- that might transmit COVID-19. When the Court spoke

of "comparable secular businesses or other activities," it directed courts assessing

COVID-19 restrictions to compare the risk posed by operating a store as opposed

to offering a religious service, not the risk posed by or to any individual shopper

or worshipper. Id. (emphasis added). The Court reiterated the point by treating

in pari materia the terms "secular activities" and "religious worship" and, likewise,

"other activities" and "religious exercise." Id. at 1296, 1297. All these terms refer

to aggregations of individual behaviors, not individual behaviors themselves.

We therefore reject plaintiffs' argument that we should cabin our

analysis to the risk an individual child who is unvaccinated -- whether for

medical or religious reasons -- might pose to the health and safety of Connecticut

47 students. On plaintiffs' view, "[w]hen two unvaccinated children walk through

the schoolhouse door, disease will not walk up to them and ask them why they

are . . . unvaccinated." Appellants' Br. at 32; see also Appellants' Suppl. Br. at 8.

In other words, plaintiffs argue, because unvaccinated children are at heightened

risk of developing and transmitting vaccine-preventable illnesses, regardless of

their reason for not being vaccinated, medical and religious exemptions are

comparable, and, under Fulton, the State may not prefer a medical reason over a

religious one when the medical reason "undermines the government's asserted

interests in a similar way." 141 S. Ct. at 1877.

This reasoning, however, is based on a misunderstanding of the

State's interest in mandating vaccination in schools, which the law requires

nearly all of Connecticut's five- to eighteen-year-olds to attend. See

. Allowing students for whom vaccination is medically

contraindicated to avoid vaccination while requiring students with religious

objections to be vaccinated does, in both instances, advance the State's interest in

promoting health and safety. To the contrary, exempting a student from the

vaccination requirement because of a medical condition and exempting a student

48 who declines to be vaccinated for religious reasons are not comparable in

relation to the State's interest.

The Act promotes the health and safety of vaccinated students by

decreasing, to the greatest extent medically possible, the number of unvaccinated

students (and, thus, the risk of acquiring vaccine-preventable diseases) in school.

The Act also promotes the health and safety of unvaccinated students. Not only

does the absence of a religious exemption decrease the risk that unvaccinated

students will acquire a vaccine-preventable disease by lowering the number of

unvaccinated peers they will encounter at school, but the medical exemption also

allows the small proportion of students who cannot be vaccinated for medical

reasons to avoid the harms that taking a particular vaccine would inflict on them.

It is for these reasons that the acting commissioner of the Department of Public

Health testified that "[h]igh vaccination rates protect not only vaccinated

children, but also those who cannot be or have not been vaccinated." DPH

Testimony at 1. In contrast, exempting religious objectors from vaccination

would only detract from the State's interest in promoting public health by

increasing the risk of transmission of vaccine-preventable diseases among

vaccinated and unvaccinated students alike.

49 This analysis is bolstered by the public health data and expert

testimony the General Assembly considered before adopting the Act, some of

which are summarized in a document plaintiffs appended to the complaint. See

App'x at 117-22. The material attached to the complaint is sparse, but, as we

noted above, we may take judicial notice of the facts and analysis in the

legislative record, including the testimony of the acting commissioner of the

Department of Public Health and comments from numerous medical authorities.

These materials show there is no question that there is a difference in magnitude

between the number of religious and medical exemptions that Connecticut

families claimed prior to the Act's adoption. In school years 2018-2019 and 2019-

2020, more than ten times as many kindergartners claimed religious exemptions

compared to medical exemptions. The legislative history, moreover, contains

numerous indications that significant numbers of religiously exempt students

attend the same schools. Against this backdrop, the Legislature reasonably

judged that the risk of an outbreak of disease was acute, even if not necessarily

imminent, and that continuing to permit religious exemptions, the State's only

kind of nonmedical exemption, to multiply would increase that risk.

50 Plaintiffs and the dissent suggest that further development of the

factual record might reveal that medical exemptions and religious exemptions

are comparable for Free Exercise Clause purposes. But because the Act's medical

exemptions further the State's interest in a way a religious exemption would not,

permitting plaintiffs to proceed to discovery would require more of the State

than what the Supreme Court has prescribed. Laws and regulations that

incidentally burden religious exercise are subject to rational basis review unless

they fail a prong of the Smith test. See Tandon,

. If, after the

legislature and governor have made a policy decision, the State must go through

discovery notwithstanding plaintiffs' failure to proffer evidence that medical and

religious exemptions are similarly situated, that would impermissibly shift onto

the State a burden that remains on plaintiffs so long as the Act is subject to

rational basis review. See id.; see also, e.g., Fifth Ave. Presbyterian Church v. City of

New York,

, 574 (2d Cir. 2002) ("Where the government seeks to

enforce a law that is neutral and of general applicability, however, then it need

only demonstrate a rational basis for its enforcement, even if enforcement of the

law incidentally burdens religious practices.").

51 The cases on which plaintiffs and the dissent rely are not to the

contrary. First, this case differs substantially from those in which courts have

held that comparable religious and secular activities both undermined a

government interest. In Fraternal Order of Police Newark Lodge No. 12 v. City of

Newark,

(3d Cir. 1999) (Alito, J.), for instance, the court struck

down a police department's policy allowing medical but not religious

exemptions from the requirement that officers be clean-shaven. Because the

department's asserted interest was in the appearance of its officers, that interest

was equally undermined when officers grew beards for religious and medical

reasons. See also Monclova Christian Acad. v. Toledo-Lucas Health Dep't,

(6th Cir. 2020) (comparing pandemic-era restrictions on religious

schools and secular businesses); Midrash Sephardi, Inc. v. Town of Surfside,

(11th Cir. 2004) (comparing effect of business district zoning

ordinance on houses of worship and private clubs and lodges). Here, as we have

explained, religious but not medical exemptions undermine the State's interest.

Moreover, a police department's interest in the appearance of its officers is of a

different nature from a state's interest in the health of its schoolchildren.

52 Second, the data about the relative prevalence of religious and

medical exemptions distinguish this case from both Central Rabbinical Congress

and Hochul. In the 2019-2020 school year, 2.3% of Connecticut kindergartners

had religious exemptions, compared to 0.2% who had medical exemptions. See

App'x at 119-20. Even though the proportion of students with religious

exemptions declined slightly from school year 2018-2019 to school year 2019-

2020, still more than ten times as many students had religious exemptions than

medical exemptions. See

The Act does not, therefore, offend the Free Exercise

Clause because it is "substantially underinclusive." Cent. Rabbinical Cong.,

. In contrast, in Central Rabbinical Congress, the proportions of

religious and secular conduct at issue were effectively reversed: "[F]ewer than

10%" of cases of neonatal herpes simplex virus infection were caused by religious

conduct, compared with "approximately 85%" of cases caused by transmission

from mother to child during birth. See

. And in Hochul, we had

"only limited data regarding the prevalence of medical ineligibility and religious

objections" among healthcare providers regarding vaccination against a disease

that had appeared less than two years before suit was filed. 17 F.4th at 287.

Denying plaintiffs' request for a preliminary injunction, we explained that, even

53 on a "sparse" record, "what data we do have indicates that claims for religious

exemptions are far more numerous." Id. at 287-88.21

Third, this case does not present meaningful uncertainties as to the

scope or purpose of the Act. As we have described above, the General Assembly

enacted, and Governor Lamont signed, the Act to promote the health and safety

of Connecticut's schoolchildren and, consequently, the broader public; the State

has articulated that interest throughout this litigation. The Act's text and

legislative history make clear that students who are not vaccinated or in the

process of being vaccinated may only attend school if they have received a

medical exemption; there are no other possible bases for exemption. See Public

Act 21-6 § 1(a)(1)-(2); Senate Proc. at 661. In contrast, in Rockland County there

were serious factual questions about both the county's purpose in enacting the

emergency declaration and the categories of children that were affected by it.

21 In Central Rabbinical Congress and Rockland County, moreover, there were reasons for concern that the challenged government actions were not religiously neutral. We decided Central Rabbinical Congress under the neutrality prong of Smith, finding that even if the regulation in question were "facially neutral . . . it is abundantly clear that [it] is not neutral in operation, as assessed in practical terms."

(citation and internal quotation marks omitted). And in Rockland County, we held that the presence or absence of religious animus was "the sort of close factual question that should be left to the jury."

.

54 For all these reasons, we conclude that religious and medical

exemptions are not comparable in reference to the State's interest in the health

and safety of Connecticut's children and the broader public. 22

3. Rational Basis Review

Because the Act and its legislative history contain no trace of

hostility toward religion but rather reflect significant accommodations on the

part of the legislature, because the Act does not provide for a system of

individualized exemptions, and because it is not substantially underinclusive, it

is neutral and generally applicable. The district court did not err, therefore,

when it concluded the Act is subject to rational basis review.

Although we are bound by Smith and its progeny, other reasons also

support this conclusion. First, both the Supreme Court and this Court have long

held that neither education nor absolute freedom from unwanted vaccination is a

22 In this regard, the Act's medical exemptions are analogous to the medical exemption contained in the statute at issue in Smith, which permitted the possession of controlled substances "obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice."

(4) (1987); see also Smith,

; Hochul, 17 F.4th at 289-90. The State's interest in preventing the unauthorized manufacture or delivery of controlled substances was not undermined when a licensed professional prescribed a substance or supplied it licitly but was undermined when the drug was made or distributed on the black market.

55 fundamental right. See, e.g., Plyler v. Doe,

(1982); Goe,

. Second, as we discuss more fully below, courts that have reviewed

substantive due process challenges to vaccination mandates have also applied

rational basis review, whether or not those who objected to vaccination gave

religious reasons. Indeed, some courts have upheld these laws "based on

historical experience without the need for legislative fact-finding hearings." F.F.

on behalf of Y.F. v. State,

, 776 (Sup. Ct. 2019). Third, courts in two

of the three other States that since 2015 have repealed religious exemptions from

school immunization mandates have upheld the revised statutes against Free

Exercise Clause claims without deciding that strict scrutiny was required. See

Love,

; Whitlow, 203 F. Supp. 3d at 1089; F.F., 143 N.Y.S.3d

at 742-43.

Plaintiffs do not dispute that the Act satisfies rational basis review.

See Appellants' Br. at 40-42. They concede that protecting public health is a

compelling government interest. Id. at 40 n.4. The Act's repeal of the religious

exemption is rationally related to that interest because it seeks to maximize the

number of students in Connecticut who are vaccinated against vaccine-

preventable diseases. The Act's requirement that children be vaccinated to

56 attend school -- as opposed to participate in "community sports leagues, religious

gatherings, and social gatherings of all types," see post, at 5 -- is rational because

only at school is attendance mandated by law, see

. The

Act's legacy provision is rationally related because it accommodates religious

believers who are already in school without extending that accommodation to

younger children. Also rationally related to the State's interest are the Act's other

provisions: broadening eligibility for medical exemptions (in part as a way of

curtailing misuse of the religious exemption), ensuring consistency in the

administration of medical exemptions, and facilitating conversations about

vaccination between individuals and healthcare providers.

Therefore, plaintiffs have not stated a plausible claim that the Act

offends the Free Exercise Clause. Nor have they plausibly claimed the Act

imposes unconstitutional conditions on the receipt of education or other state

services, because it is a constitutional exercise of Connecticut's police power. See

Goe,

n.16. We need not and do not decide whether the Act would

also satisfy strict scrutiny.

57 II. The Other Constitutional Claims

A. Medical Freedom and Privacy

In their complaint, plaintiffs argued that the Act also violates their

rights to privacy and medical freedom under the First, Fourth, Fifth, and

Fourteenth Amendments. They subsequently narrowed their argument to

encompass only the Fourteenth Amendment. This claim, however, is foreclosed

by binding precedent.

In Phillips, we squarely rejected a substantive due process challenge

to New York's then-existing vaccination mandate.

; see also

Caviezel v. Great Neck Pub. Schs.,

(2d Cir. 2012) (summary

order). Again in Hochul, we observed that "[b]oth this Court and the Supreme

Court have consistently recognized that the Constitution embodies no

fundamental right that in and of itself would render vaccine requirements

imposed in the public interest, in the face of a public health emergency,

unconstitutional." 17 F.4th at 293 (first citing Jacobson,

; and

then citing Phillips,

). In Goe, moreover, we reaffirmed that the

federal Constitution confers no fundamental right to an education. We also

noted that "no court has ever held that there is a right" for an individual to claim

58 even a "medical exemption from immunization," where there is no "reasonable

certainty" a vaccine would cause harm.

(quoting Jacobson,

). "Nor has any court held that such a right is implicit in the concept of

ordered liberty, or deeply rooted in this Nation's history and tradition."

(internal quotation marks and citation omitted); see also Dobbs v. Jackson Women's

Health Org.,

(2022) (reiterating standard for substantive due

process claims).

These precedents dictate the result here, and we see no reason to

depart from them. First, plaintiffs attempt to distinguish Hochul (on the basis

that the regulation challenged in that case was promulgated during an

emergency and affected a smaller number of individuals than the Act) as well as

Phillips (on the basis that the plaintiffs in that case described the right they

claimed at too high a level of generality). See Appellants' Br. at 43. But plaintiffs

give no reason why emergency circumstances or the number of individuals

whose rights are affected should factor into our analysis. Our decision in Phillips

was not premised on the level of specificity of the right the plaintiffs claimed,

and indeed the Phillips plaintiffs invoked a right to "religious freedom, privacy[,]

and bodily autonomy" not unlike that described by plaintiffs here. Reply Brief

59 for Plaintiffs-Appellants at 20, Phillips v. City of New York,

(2d Cir.

2015) (per curiam) (No. 14-2156),

, at *20. Plaintiffs have

therefore failed to demonstrate why our holdings in Phillips and Hochul do not

foreclose their claim.

Second, plaintiffs have offered no evidence that the right to be free

from unwanted vaccination is either implicit in the concept of ordered liberty or

deeply rooted in U.S. history and tradition. To the contrary, for more than a

century, courts have consistently rejected the notion that there is a "fundamental

right ingrained in the American legal tradition" to avoid vaccination. Klaassen v.

Trs. of Ind. Univ.,

(7th Cir. 2021); see also, e.g., Jacobson,

; Zucht,

; Workman,

; Phillips,

; Hochul, 17 F.4th at 293; Goe,

; Doe v. Zucker,

, 251 (N.D.N.Y. 2021); B.W.C. v. Williams,

, 622 & n.16 (8th Cir.

2021). Other cases have alluded to the balance that the law has long struck

between individuals' freedom to refuse medical treatment and the government's

interest in public health. See, e.g., Cruzan ex rel. Cruzan v. Dir., Mo. Dep't of Health,

(1990). To the extent that plaintiffs rely on precedents regarding

medical privacy that the Supreme Court overruled in Dobbs, that decision

60 undercuts their arguments. See Dkt. No. 71 (defendants' letter filed pursuant to

Fed. R. App. P. 28(j)).

Finally, although the Act imposes substantial consequences where a

student or childcare participant is not vaccinated or does not obtain a medical

exemption, defendants are correct that the Act "does not compel vaccination, but

simply makes it a condition for enrolling in school." Appellees' Br. at 51. What

we said in Hochul applies with equal force here: "[I]ndividuals who object to

receiving the vaccines on religious grounds have a hard choice to make, [but]

they do have a choice." 17 F.4th at 293-94; see also Goe,

; Doe v.

Zucker, 520 F. Supp. 3d at 252. For this and the foregoing reasons, the Act does

not violate plaintiffs' substantive due process rights to privacy and medical

freedom.

B. Equal Protection

Plaintiffs contend the Act is also subject to strict scrutiny under the

Equal Protection Clause of the Fourteenth Amendment because the legacy

provision, by continuing to exempt children enrolled in kindergarten and later

grades but not children who are younger, creates an age-based classification that

burdens their free exercise rights. U.S. Const., amend. XIV, § 1. We agree with

61 the district court that strict scrutiny does not apply, and we affirm its dismissal of

this claim.

Under the Equal Protection Clause, claims that the government has

discriminated based on age are typically subject to rational basis review because

age is not a suspect classification. See Gregory v. Ashcroft,

(1991).

Where an age-based "classification impermissibly interferes with the exercise of a

fundamental right or operates to the peculiar disadvantage of a suspect class,"

however, strict scrutiny applies. Mass. Bd. of Ret. v. Murgia,

(1976); see also Heller v. Doe ex rel. Doe,

(1993).

In Zucht, the Supreme Court upheld a school vaccination mandate

against an Equal Protection Clause challenge.

. Although

Zucht was decided before the categories of modern equal protection law

developed, the Supreme Court anticipated what today we call rational basis

review when it held that "in the exercise of the police power reasonable

classification may be freely applied, and [a] regulation is not violative of the

equal protection clause merely because it is not all-embracing."

; see also

Workman,

(relying on Zucht to dismiss religiously based

equal protection challenge to West Virginia's school vaccination requirement).

62 While plaintiffs are correct that the free exercise of religion is a

fundamental constitutional right, we have already concluded that the Act does

not impermissibly burden plaintiffs' free exercise rights. See supra Part I(B).

Plaintiffs' attempt to argue that they need only "demonstrate a burden on a

fundamental constitutional right," Appellants' Br. at 48, rather than plead a Free

Exercise Clause claim under the applicable tests, is without support in the

Supreme Court's cases. In Williams v. Rhodes,

(1968), on which

plaintiffs attempt to rely, the Court had no need to make such a distinction

because the laws under review patently violated Ohio voters' associational rights

under the First Amendment. In Murgia, likewise, the Court listed cases

reaffirming fundamental rights without suggesting that courts should apply

different tests when those rights are alleged to have been violated in a

discriminatory way.

n.3. Because there is no reason to apply

heightened scrutiny to plaintiffs' equal protection challenge, we evaluate it under

rational basis review.

We decided above that the legacy provision, like the law at issue in

Zucht, is rationally related to the State's interest in protecting the health and

safety of Connecticut's students. See supra Part I(B). As the district court

63 observed, although the legacy provision will delay the full implementation of the

Act, "[t]he class of unvaccinated students who may keep their religious

exemptions will diminish as the students graduate, allowing the state to reduce

the number of unvaccinated students, protect the public's health, and balance the

expectation interests of parents with currently enrolled students." We The Patriots

USA, Inc., 579 F. Supp. 3d at 312. Therefore, the district court did not err in

dismissing this claim.

C. Childrearing

Plaintiffs next argue that the Act violates the fundamental liberty

interest in childrearing protected by the Fourteenth Amendment because the

Act's "vaccination requirement that prohibits the Plaintiffs from educating their

children in any forum -- public or private -- completely interferes with their right

to decide what is best for their children's health and to raise them according to

their religious beliefs." App'x at 48. This claim also fails.

As plaintiffs note, the Supreme Court has repeatedly held that

parents have a liberty interest "in the care, custody, and control of their children."

Troxel v. Granville,

(2000) (collecting cases including Prince). In

applying Troxel, we have cautioned that the Supreme Court "left the scope of that

64 right undefined." Leebaert v. Harrington,

(2d Cir. 2003). In the

educational context, we have joined other Circuits in holding there is not a

parental right, absent a violation of the Religion Clauses, to "direct how a public

school teaches their child." Skoros v. City of New York,

(2d. Cir 2006)

(quoting Blau v. Fort Thomas Pub. Sch. Dist.,

(6th Cir. 2005)); see

also Brown v. Hot, Sexy and Safer Prods., Inc.,

(1st Cir. 1995),

abrogated on other grounds as stated in Martinez v. Cui,

(1st Cir.

2010); Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L,

(10th Cir. 1998).

In Smith, the Supreme Court observed that even where a law is

neutral and generally applicable, some heightened level of scrutiny might apply

where a petitioner brings forward a free exercise claim connected with a

"communicative activity or parental right."

. We have held,

however, that this language was dictum because the plaintiffs in Smith presented

no such claim. See Leebaert,

(citing Knight v. Conn. Dep't of Pub.

Health,

, 167 (2d Cir. 2001)). Accordingly, like at least one other

Circuit, we do not apply heightened scrutiny to "hybrid rights" claims. Id.; see

65 also Kissinger v. Bd. of Trs. of Ohio State Univ., Coll. of Veterinary Med.,

(6th Cir. 1993).

The district court correctly held that plaintiffs' claim that the Act

violates their liberty interest in childrearing was coextensive with their Free

Exercise Clause claim. Therefore, upon deciding that the free exercise claim was

without merit, the district court correctly dismissed plaintiffs' childrearing claim

as well. Indeed, this claim is foreclosed by our precedents: As in Leebaert and

Skoros, plaintiffs assert no liberty interest in the rearing of their children that is

not encompassed in their free exercise claim.

III. The IDEA Claim

Finally, plaintiff Elidrissi brings a claim against the State Agency

Defendants and the Stamford Board of Education. The latter is responsible for

the education of Elidrissi's son.

A. Applicable Law

The IDEA requires States that receive federal funding to provide

children with disabilities a "free appropriate public education that emphasizes

special education and related services."

(d)(1)(A). Where a State

is sued for a violation of the IDEA, legal and equitable remedies "are available . . .

66 to the same extent as those remedies are available for such a violation in the [sic]

suit against any public entity other than a State."

§ 1403(b).

As defined in the IDEA, a "child with a disability" is a child who

experiences one or more of a list of enumerated disabilities, including "speech or

language impairments," and "who, by reason thereof, needs special education

and related services." Id. § 1401(3)(A)(i)-(ii). A child who requires "related

services" but not "special education" does not qualify as a "child with a

disability."

(a)(2)(i). "Special education," as defined in the IDEA,

is "specially designed instruction, at no cost to parents, to meet the unique needs

of a child with a disability."

(29).

B. Application

The district court dismissed Elidrissi's IDEA claim because the

complaint pled that her child receives only "special services," not "special

education." We The Patriots USA, Inc., 579 F. Supp. 3d at 315-16; see App'x at 44.

The court held there was no "factual basis to infer that the child's condition could

fall under the regulatory definition of a 'child with a disability' and not just a

'speech and learning disorder for which he needs special services.'" We The

Patriots USA, Inc., 579 F. Supp. 3d at 314.

67 The district court's distinction between "special services" and

"special education" was overly strict. The IDEA and its associated regulations do

not use the phrase "special services." A reasonable inference from the allegation

that Elidrissi's son suffers from "a speech and learning disorder for which he now

receives special services," combined with the allegation that he "is disabled

within the meaning of the IDEA," is that the "special services" the complaint

mentions constitute "special education" rather than "related services." App'x at

44, 49. Therefore, although it is close, we conclude that because the district court

parsed the complaint too restrictively, failing to draw reasonable inferences in

Elidrissi's favor, the court erred when it found Elidrissi had not stated a plausible

claim for relief under the IDEA. See Iqbal,

(holding that a claim is

plausible where a plaintiff's allegations enable the court to draw a "reasonable

inference" the defendant is liable).

We therefore vacate and remand this aspect of the district court's

judgment. On remand, it will be for the district court to consider defendants'

challenges to the merits of Elidrissi's claim.

68 CONCLUSION

For the reasons stated above, we AFFIRM the district court's

judgment to the extent that it dismissed the first four counts of the complaint.

We VACATE the portion of the district court's judgment dismissing the fifth

count of the complaint and REMAND for further proceedings with respect to

that claim.

69 JOSEPH F. BIANCO, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority opinion as to all claims, except for its affirmance of

the district court’s dismissal of plaintiffs’ claim challenging Public Act 21-6 (the

“Act”) under the Free Exercise Clause. I respectfully part company with the

majority opinion as to Section I Parts B(2)(b) and B(3) where the majority

concludes, at the motion to dismiss stage, that the Act passes constitutional muster

under rational basis review pursuant to the legal standard articulated by the

Supreme Court in Emp. Div., Dep’t of Hum. Res. of Ore. v. Smith,

(1990).

I emphasize, as a preliminary matter, that this case is not about a state’s

general authority to enact a mandatory vaccination law for schoolchildren. The

Supreme Court and this Court have made clear, and with good reason, that it is

within a state’s police powers to establish such a requirement. See Zucht v. King,

(1922) (“[I]t is within the police power of a state to provide for

compulsory vaccination.” (citing Jacobson v. Massachusetts,

(1905));

accord Phillips v. City of New York,

(2d Cir. 2015) (per curiam).

Instead, today, we address a narrower question: whether a mandatory vaccination

requirement, which repeals its previously existing religious exemption and allows

1 some unvaccinated students—those with medical exemptions—to join their peers

in schools, but excludes students who are unvaccinated due to religious objections,

raises a plausible free exercise claim that survives a motion to dismiss. On this

narrower question, the district court erred in concluding that plaintiffs’ free

exercise claim is foreclosed by our prior precedent. Indeed, as the majority opinion

acknowledges, “[p]laintiffs’ free exercise challenge presents a question of first

impression for this Court.”1 Ante, at 33.

In addition, it is important to note the limited task before us at this juncture.

Specifically, we must determine whether, at the motion to dismiss stage, plaintiffs

have stated a plausible free exercise claim by asserting that the Act, which requires

students in public or private school to be vaccinated against certain communicable

diseases and maintains a secular exemption while simultaneously eliminating a

religious exemption, fails to satisfy the requirements for rational basis review

articulated by the Supreme Court in Smith, and thus must be subject to strict

1 In Phillips, we stated that “New York could constitutionally require that all children be vaccinated in order to attend public school.”

(emphasis added). However, as the majority opinion notes, that portion of our decision in Phillips was dictum. Ante, at 33 n.17. In any event, as Judge Park has correctly observed in another case, “we have never said that allowing some unvaccinated students (i.e., those with medical exemptions) to mingle with their peers in schools, while excluding religious objectors, would be constitutional.” M.A. ex rel. H.R. v. Rockland Cnty. Dep’t of Health,

, 41 n.4 (2d Cir. 2022) (Park, J., concurring). 2 scrutiny. See Ashcroft v. Iqbal,

(2009) (holding that, to survive a

motion to dismiss, the complaint “must contain sufficient factual matter . . . to

‘state a claim to relief that is plausible on its face’” (quoting Bell Atl. Corp. v.

Twombly,

(2007))). A determination that plaintiffs have plausibly

asserted such a free exercise claim would not invalidate the Act, but rather would

allow plaintiffs to conduct discovery on, inter alia, the disputed factual issues that

bear upon what level of scrutiny should apply in reviewing the constitutionality

of the Act under the Free Exercise Clause.

Under Smith, a state’s law that burdens religious exercise avoids strict

scrutiny only if it is “a valid and neutral law of general applicability.”

(internal quotation marks and citation omitted). A law is “not generally

applicable if it is substantially underinclusive such that it regulates religious

conduct while failing to regulate secular conduct that is at least as harmful to the

legitimate government interests purportedly justifying it.” Cent. Rabbinical Cong.

of the U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene (Cent. Rabbinical Cong.),

(2d Cir. 2014).

Here, for over fifty years, Connecticut maintained a religious exemption to

the mandatory vaccination requirement for students. Connecticut contends that

3 the Act’s elimination of the religious exemption in 2021 was necessary to protect

the health and safety of its schoolchildren. However, as set forth below, an

analysis of the Act raises a plausible claim that it is substantially underinclusive to

the extent it fails to regulate secular conduct, including by allowing an exemption

to the mandatory vaccination law for students with medical objections, that is at

least as harmful to the legitimate interest of promoting the health and safety of

students and the public as is the religious conduct.

Although Connecticut asserts that this differing treatment between religious

and secular exemptions was prompted by a substantial increase over recent years

in the number of religious exemptions and an acute risk of an outbreak of disease,

Connecticut fails to explain how forty-four states and the District of Columbia

have maintained a religious exemption for mandatory student vaccinations

without jeopardizing public health and safety. Connecticut also fails to articulate

how having the “grandfather clause” in the Act that allows students with current

religious exemptions to remain unvaccinated until they graduate high school

(which could be over a decade if they were in kindergarten at the time of the

passage of the Act) is consistent with its position that the elimination of the

4 religious exemption was necessary to prevent an acute risk of an outbreak of

disease among students.

Moreover, while preventing unvaccinated students with religious

objections from attending school to avoid the spread of disease among students,

Connecticut has done nothing to address the reality that those same unvaccinated

students may continue to interact with other children and the general public in

numerous places outside the school setting including, for example, community

sports leagues, religious gatherings, and social gatherings of all types. Nor does

Connecticut deal with the fact that students will also continue to interact with

unvaccinated adults, as the State does not regulate vaccination requirements for

adults.

Notwithstanding these many fact-intensive questions regarding whether

this law satisfies the general applicability requirement under Smith, the majority

opinion closes the courthouse doors to plaintiffs on their free exercise claim on a

motion to dismiss before any discovery and before plaintiffs had an opportunity

to present evidence bearing on the general applicability requirement in this

particular context. The majority opinion does so by concluding, inter alia, that

medical and religious exemptions are not comparable for free exercise purposes

5 as a matter of law. Neither Supreme Court precedent nor this Court’s

jurisprudence allows a court to so summarily cast aside the fundamental

constitutional right of individuals to the free exercise of religion. In reaching this

conclusion before the development of any factual record in discovery, the majority

opinion ignores two recent decisions by this Court addressing similar COVID-19

vaccination requirements. In both of these cases, we recognized that a plaintiff

ultimately may be able to put forth evidence establishing that this precise type of

differential treatment fails to satisfy the general applicability requirement in

Smith—thereby subjecting the law to strict scrutiny.

Not only is the majority opinion’s holding incorrect at this stage given the

factual allegations in this case, but its analysis also has troubling implications for

the future of the Free Exercise Clause as it relates to all types of vaccination

requirements for students and other members of the public, including for COVID-

19. In other words, under the majority opinion’s analysis, a state or other

governmental entity could expand mandatory vaccination requirements and

simultaneously eliminate religious exemptions (while maintaining broad medical

exemptions) and easily satisfy the low constitutional bar of rational basis review

by invoking generalized concerns about public health and safety. If the allegations

6 in this case cannot survive a motion to dismiss, many other “general applicability”

challenges to vaccination requirements that contain a similar secular exemption

but no religious exemption, will undoubtedly suffer the same fate.

In sum, for the reasons discussed below, I conclude that plaintiffs have

stated a plausible free exercise claim and the question of what level of scrutiny

applies to that claim cannot be resolved at the motion to dismiss stage in this

particular case. Accordingly, I would vacate the judgment of the district court and

remand for further proceedings as to the free exercise claim (along with the IDEA

claim) and, therefore, respectfully dissent from that portion of the majority

opinion.

DISCUSSION

The First Amendment bars the government from “prohibiting the free

exercise” of religion. U.S. Const., amend. I; see Cantwell v. Connecticut,

(1940) (incorporating the Free Exercise Clause against the states). “The free

exercise of religion means, first and foremost, the right to believe and profess

whatever religious doctrine one desires.” Smith,

. “The Free

Exercise Clause thus protects an individual’s private right to religious belief, as

well as the performance of (or abstention from) physical acts that constitute the

7 free exercise of religion.” Kane v. De Blasio,

, 163–64 (2d Cir. 2021) (per

curiam) (internal quotation marks and citation omitted). Therefore, “government

enforcement of laws or policies that substantially burden the exercise of sincerely

held religious beliefs is subject to strict scrutiny.” Fifth Ave. Presbyterian Church v.

City of New York,

, 574 (2d Cir. 2002). However, under the framework

established by the Supreme Court in Smith, “[w]here the government seeks to

enforce a law that is neutral and of general applicability . . . then it need only

demonstrate a rational basis for its enforcement, even if enforcement of the law

incidentally burdens religious practices.” Id. (citing Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah,

(1993) & Smith, 494 U.S. at 878–79).

Here, there is no question that the imposition of a mandatory vaccination

requirement for students to be able to attend a private or public school in

Connecticut, with no religious exemption, substantially burdens the free exercise

of religion. See Trinity Lutheran Church of Columbia, Inc. v Comer,

(2017) (“To condition the availability of benefits upon a recipient’s willingness to

surrender his religiously impelled status effectively penalizes the free exercise of

his constitutional liberties.” (alterations adopted) (internal quotation marks and

citation omitted)). As to the level of review, plaintiffs argue that, because of the

8 existence of the medical exemption and the repeal of the religious exemption to

the mandatory vaccination regime for students, the Act both lacks neutrality and

general applicability and, therefore, is subject to strict scrutiny. I agree with the

majority opinion that plaintiffs have failed to plausibly allege that the Act lacks

neutrality. Plaintiffs concede that they have no particular allegations of religious

animus and, instead, argue that non-neutrality is demonstrated by the elimination

of the religious exemption from the Act. As the majority opinion notes, we have

held that “[t]he absence of a religious exception to a law does not, on its own,

establish non-neutrality such that a religious exception is constitutionally

required.” We the Patriots USA, Inc. v. Hochul,

, 282 (2d Cir.) (per

curiam), opinion clarified,

, 287 (2d Cir. 2021), and cert. denied sub

nom. Dr. A. v. Hochul,

(2022). I agree with the majority opinion that

the repeal of a religious exemption, by itself, also does not render a statute non-

neutral for purposes of Smith. Given the lack of particular allegations of religious

animus or hostility with respect to the passage of the Act, plaintiffs have failed to

plausibly allege that the Act is non-neutral under Smith.

However, with regard to general applicability, I respectfully disagree with

the majority opinion and would conclude that plaintiffs have plausibly alleged

9 that the Act lacks general applicability.2 The general applicability requirement in

Smith “protects religious observers against unequal treatment, and inequality that

results when a legislature decides that the governmental interests it seeks to

advance are worthy of being pursued only against conduct with a religious

motivation.” Cent. Rabbinical Cong., 763 F.3d at 196–97 (alterations adopted)

(quoting Church of Lukumi, 508 U.S. at 542–43). Under Smith, a law is not generally

applicable if it (1) “invites the government to consider the particular reasons for a

person’s conduct by providing a mechanism for individualized exemptions,” or

(2) “if it prohibits religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a similar way.” Fulton v. City

of Philadelphia,

, 1877 (2021) (alteration adopted) (internal quotation

marks and citations omitted). Although the Act does not raise any issue under

Smith with regard to a mechanism for individualized exemptions, I conclude that

2 As an initial matter, I note that I agree with Judge Park’s discussion in Rockland County which states that “the general-applicability test embraces a purposivist approach that is vulnerable to manipulation and arbitrariness” and “[u]ntil Smith is overruled, its ill- defined test means that free-exercise rights risk being perennially trumped by the next crisis.”

(Park, J., concurring) (internal quotation marks and citation omitted). In fact, “since Smith, several Supreme Court justices have written or joined in expressing doubt about Smith’s free exercise jurisprudence.” 303 Creative LLC v. Elenis,

, 1205 n.11 (10th Cir. 2021) (Tymkovich, C.J., dissenting), rev’d,

(2023). In any event, Smith continues to be binding precedent, and I apply its framework here. 10 plaintiffs have plausibly alleged that the Act, in repealing the religious exemption

while maintaining a medical exemption, “is substantially underinclusive such that

it regulates religious conduct while failing to regulate secular conduct that is at

least as harmful to the legitimate government interests purportedly justifying it”

and thus lacks general applicability under Smith. Cent. Rabbinical Cong.,

; see also Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark,

, 365–66 (3d Cir. 1999) (holding, with respect to a “no-beard policy,” “that

the [Police] Department’s decision to provide medical exemptions while refusing

religious exemptions is sufficiently suggestive of discriminatory intent so as to

trigger heightened scrutiny under Smith . . . .”).

“[W]hether two activities are comparable for purposes of the Free Exercise

Clause must be judged against the asserted government interest that justifies the

regulation at issue.” Tandon v. Newsom,

(2021) (per curiam)

(citing Roman Cath. Diocese of Brook. v. Cuomo,

(2020) (per curiam)

(listing secular activities treated more favorably than religious worship that either

“have contributed to the spread of COVID–19” or “could” have presented similar

risks)). “Comparability is concerned with the risks various activities pose, not the

reasons why people [undertake an activity].”

11 As an initial matter, Connecticut was less than precise in describing the

scope of its asserted interest at the time of the Act’s passage and should not be

permitted under Smith to rely upon post-hoc rationalizations. See Doe 1-3 v. Mills,

, 20 (2021) (Gorsuch, J., dissenting from the denial of application for

injunctive relief related to regulation mandating COVID-19 vaccinations for Maine

healthcare workers) (explaining that “when judging whether a law treats a

religious exercise the same as comparable secular activity, this Court has made

plain that only the government’s actually asserted interests as applied to the parties

before it count—not post-hoc reimaginings of those interests expanded to some

society-wide level of generality”). As the majority opinion acknowledges,

Connecticut maintained in the district court that its interest in the Act was to

“protect the health and safety of Connecticut’s schoolchildren,” We the Patriots

USA, Inc. v. Connecticut Off. of Early Childhood Dev.,

, 307 (D.

Conn. 2022) (internal citation omitted), and reasserted that same interest at oral

argument in this Court, Oral Argument at 11:21, 19:34, We the Patriots (No. 22-249).

At other times in its appellate papers, Connecticut has broadened that interest to

also include protecting the health and safety of the general public. In any event,

even adopting the broader articulation of Connecticut’s asserted interests in the

12 Act (as the majority opinion does), the failure to regulate secular conduct in the

form of medical exemptions while regulating religious conduct raises substantial

questions regarding whether the Act meets the general applicability requirement

under Smith, which should not be decided on a motion to dismiss.

To the extent the asserted interest justifying the Act is the prevention of the

spread of communicable diseases among Connecticut students entering a school,

it is obvious that an unvaccinated student with a medical objection who is allowed

to attend school poses the same health risk to another student as an unvaccinated

student with a religious objection. To be sure, the majority opinion is correct that

we have emphasized that the analysis need not be limited to “a one-to-one

comparison of the transmission risk posed by an individual [with a religious

exemption] and . . . an individual [with a medical exemption],” to ascertain

comparability for general applicability purposes. Hochul, 17 F.4th at 287; see also

Ante, at 46–49. Thus, the majority opinion focuses on “aggregate data about

transmission risks.” Ante, at 47 (internal quotation marks and citation omitted).

However, even when comparing the relative risks of the two groups of

unvaccinated students in the aggregate, substantial factual questions remain as to

whether the comparative risk of harm to other students posed by students

13 unvaccinated due to religious objections is materially greater than that posed by

students unvaccinated due to medical objections.

Connecticut cites limited data in its brief in support of its argument that the

risks posed by the two groups are not comparable for free exercise purposes. In

particular, it relies on data attached to the complaint, which shows that from 2019

to 2020, 2.3% of kindergarteners claimed a religious exemption to Connecticut’s

vaccine requirements while only 0.2% of kindergarteners claimed a medical

exemption. See Appellee’s Br. at 3–4, 38. The majority opinion acknowledges that

this aggregate public health data that plaintiffs presented in an appendix to the

complaint “is sparse.” Ante, at 50 (emphasis added). The majority opinion then

seeks to bolster this sparse record by utilizing legislative history, including

comments by legislators who “spoke of the need to avoid ‘a real public health

crisis.’” Id. at 45 (quoting Connecticut General Assembly House Proceedings, H.B.

6423, 2021 Sess., at 847 (Conn. 2021)). For example, the majority opinion notes

that “[i]n school years 2018-19 and 2019-20, more than ten times as many

kindergartners claimed religious exemptions compared to medical exemptions.”

Id. at 51. The majority opinion further notes that these statistics reflect that “[t]he

overall trend was toward an increase in religious exemptions,” while medical

14 exemptions remained constant. Id. at 9. Based on the threadbare data and

unsupported statements in the legislative history, the majority opinion leaps to the

legal conclusion “that religious and medical exemptions are not comparable in

reference to the State’s interest in the health and safety of Connecticut’s children

and the broader public,” id. at 55, in part, because “the Legislature reasonably

judged that the risk of an outbreak of disease was acute, even if not necessarily

imminent, and that continuing to permit religious exemptions, the State's only

kind of nonmedical exemption, to multiply would increase that risk,” id. at 51.

The limited statistics in the “sparse record” hardly compel the conclusion as

a matter of law that the aggregate risks associated with medical exemptions are

not comparable to religious exemptions because of the increasing number of

students seeking religious exemptions. As an initial matter, the percent of

kindergartners claiming religious exemptions actually dropped (albeit slightly)

from the 2018-19 school year compared to the 2019-20 school year. In any event,

the increase of religious exemptions over the last ten years, by itself, does not

demonstrate that the risks associated with such exemptions are no longer

comparable to the medical exemptions. Much more data and expert opinion

would be necessary to engage in a meaningful analysis of the comparable risks,

15 such as the levels of herd immunity for various illnesses that are the subject of the

immunization requirements and whether the increase in exemptions has had any

meaningful impact in Connecticut on such herd immunity. That type of fact-

intensive analysis should not be conducted, as the majority opinion does, on a

sparse record at the motion to dismiss stage.

In addition, the majority opinion does not explain why, if Connecticut’s

interest in repealing a decades-old religious exemption is justified by an acute risk

of outbreak of disease among children and “a real public health crisis,” id. at 14,

45, it would enact a law that still allows students with current religious

exemptions, from kindergarten to the 12th grade, to be “grandfathered in” and

continue to attend school unvaccinated until they graduate from high school. In

other words, under the Act, the purportedly large number of kindergartners with

religious exemptions from the 2019 to 2020, upon which Connecticut relies to

demonstrate an alarming increase in religious exemptions that risks an acute

outbreak of disease, will be permitted to continue to attend school while

unvaccinated for over a decade. See Public Act 21-6 § 1(b).

Moreover, although the Act may successfully keep students who are

unvaccinated due to religious objections out of public and private schools, it does

16 nothing to eliminate the comingling of those unvaccinated students with children

(including those unvaccinated for medical reasons), in any other place of assembly

including church, community sports events, restaurants, or any other social setting

where children tend to gather. For this same reason, the Act appears to be

substantially underinclusive to the extent it is aimed at the risk of disease

purportedly created by “clustering.” Appellees’ Br. at 4 n.1. As described by

Connecticut, “clustering,” is “a phenomenon whereby individuals with religious

objections to vaccines tend to cluster in particular communities, causing that

community’s vaccination rate to be especially low.” Id. However, the students

who refuse to be vaccinated for religious reasons even after passage of the Act and

are clustered in a particular community and homeschooled, will likely continue to

interact not only with each other, but also (as noted above) with children outside

the clustered community in all types of public settings.

Even if Connecticut’s interest is broadened to extend to the health and safety

of the public in general, substantial questions remain regarding the Act’s ability to

satisfy the general applicability requirement in Smith. For example, even if the Act

is successful in compelling religious objectors to vaccinate their children in order

to be able to send them to school, the Act does not cover unvaccinated adults, who

17 (whether clustered or not) could spread diseases and substantially undermine the

State’s asserted public health goal in eliminating the free exercise rights of students

in this context.

Connecticut’s assertion (adopted by the majority opinion), that the

aggregate risk of disease to schoolchildren posed by religious exemptions is acute

compared to the much lower risk posed by medical exemptions, also overlooks

the fact that currently forty-four states, as well as the District of Columbia, have a

religious exemption to state laws requiring children attending public school to be

vaccinated. See Nat’t Conf of State Legislatures, States With Religious and

Philosophical Exemptions From School Immunization Requirements,

https://www.ncsl.org/health/states-with-religious-and-philosophical-exemptions-

from-school-immunization-requirements (last updated May 25, 2022). That data

suggests that the harm posed to students by religious exemptions to vaccination

requirements may, indeed, be comparable to the harm posed by non-religious

exemptions.

The majority opinion sidesteps many of these questions by suggesting that

”exempting a student from the vaccination requirement because of a medical

condition and exempting a student who declines to be vaccinated for religious

18 reasons are not comparable in relation to the State’s interest” because, inter alia,

the medical exemption allows students “to avoid the harms that taking a particular

vaccine inflict on them.” Ante, at 48–49. That assertion, however, seems to ignore

the fact that a medical exemption, which may support the State’s interest in one

way (namely, avoiding any harm to that student from the vaccination), may also

undermine the State’s interest in another way that is similar to the impact of a

religious exemption (namely, avoiding the spread of disease in schools).

Furthermore, the student with the medical objection to vaccinations can

avoid that harm and other schoolchildren would be protected from disease if the

student with the medical objection was not exempt and was left with the option of

being homeschooled, which is now the only option under the Act available for

students with a religious objection. In other words, the statute at issue here is not

a mandatory vaccination requirement for children at large, but rather for children

attending public or private schools. Thus, the State’s asserted interest in protecting

schoolchildren from the spread of disease by unvaccinated students and its

corresponding interest in not mandating a vaccine that would cause medical harm

to certain students are both furthered if the Act treats medical objectors in the same

manner as religious objectors and does not allow medical objectors into the school.

19 Therefore, contrary to the majority opinion’s analysis, a mandatory vaccination

statute that excludes religious objections, but provides an exemption to students

with medical objections, does not automatically avoid a general applicability issue

under Smith simply by pointing to concerns about avoiding medical harm to a

student from the vaccine.

Indeed, this Court has recently acknowledged, on two separate occasions,

that a compulsory vaccination law or regulation, which does not include a

religious exemption but has a medical exemption, may raise potential general

applicability problems under Smith. The first instance was in We the Patriots USA,

Inc. v. Hochul, where although we determined that a preliminary injunction against

New York’s emergency rule was not appropriate, we noted that a general

applicability problem may arise after further fact development. 17 F.4th at 287–

88. The second occasion was in M.A. ex rel. H.R. v. Rockland Cnty. Dep’t of Health,

when we decided that summary judgment in favor of the county was unwarranted

because the record contained factual disputes as to, inter alia, whether the law at

issue was generally applicable under Smith.

, 38–39 (2d Cir. 2022).

In Hochul, we reviewed two cases in tandem, both concerning New York’s

emergency rule requiring healthcare facilities to ensure that their employees were

20 vaccinated against COVID-19 and containing a medical exemption but no

exemption for religious objectors.

. Plaintiffs, in each of those cases,

brought an action claiming, inter alia, that the emergency vaccination rule violated

the Free Exercise Clause and moved for a preliminary injunction.

at 277–79.

One district court granted the preliminary relief requested, enjoining the rule

insofar as it prevented healthcare workers from being eligible for an exemption

based on religious belief; the other denied it. See A. v. Hochul,

(N.D.N.Y. 2021) (granting preliminary injunction); We the Patriots USA, Inc. v.

Hochul, No. 21-cv-4954,

(E.D.N.Y. Sept. 12, 2021) (denying

preliminary injunction). On appeal, we reversed the grant of the preliminary

injunction relating to the emergency rule and affirmed the denial of the

preliminary injunction in the tandem case. Hochul, 17 F.4th at 296.

In doing so, although we determined that a preliminary injunction was not

appropriate at that early stage, we left open the possibility that further

development of the record, including information about the risks posed by the two

types of exemptions and the number of each type of exemption claimed, may raise

a general applicability problem. Id. at 286–88. In particular, we concluded that

“[w]ith a record as undeveloped on the issue of comparability as that presented

21 here, we cannot conclude that the above vaccination requirements are per se not

generally applicable . . . so as to support a preliminary injunction.” Id. at 287–88.

However, we also noted, because “[t]he record before us contains only limited data

regarding the prevalence of medical ineligibility and religious objections,” id. at

287, the risks associated with medical exemptions and religious exemption “may,

after factual development, be shown to be too insignificant to render the

exemptions incomparable,” id. at 286. Therefore, far from suggesting that a

compulsory vaccination with a medical exemption, but not a religious one, is

generally applicable as a matter of law, we recognized that fact-finding regarding

the comparability of the two exemptions could be critical to determining whether

such a law is generally applicable. See also Cent. Rabbinical Cong.,

(vacating denial of preliminary injunction involving a free exercise claim because,

inter alia, “[i]n light of the sparse record at this preliminary stage, we cannot

conclude that [the Ordinance at issue] is generally applicable”); Bosarge v. Edney,

No. 22-cv-233,

, at *10 (S.D. Miss. April 18, 2023) (granting

preliminary injunction preventing enforcement of Mississippi’s compulsory

vaccination law requiring students to be vaccinated in order to attend public and

private schools in the State and explaining that “[b]ecause the evidence shows that

22 there was a method by which Mississippi officials could consider secular

exemptions, particularly medical exemptions, [but not religious objections,] their

interpretation of the Compulsory Vaccination Law would not be neutral or

generally applicable”).

More recently, in Rockland County, we explicitly confirmed the need for a

fully developed record at trial on the comparable risks associated with religious

and secular exemptions, in order to determine the general applicability of a law

involving compulsory vaccinations for children. 53 F.4th at 38–40. More

specifically, we held that fact issues precluded summary judgment in a Free

Exercise Clause challenge to an emergency declaration that barred unvaccinated

children from places of public assembly, other than those with medical

exemptions.

. In that case, the parents of minor children brought an action

against the Rockland County Department of Health and several Rockland County

officials asserting various claims, including a violation of the Free Exercise Clause,

based on orders that excluded children who were not vaccinated against

measles from attending school and an emergency declaration that barred

unvaccinated children, other than those with medical exemptions, from places of

public assembly.

at 32–33. The defendants moved for summary judgement,

23 which the district court granted, determining that the challenged restrictions did

not violate the Free Exercise Clause because Phillips “expressly held that

‘mandatory vaccination as a condition for admission to school does not violate the

Free Exercise Clause.’” W.D. v. Rockland County,

, 405 (S.D.N.Y.

2021) (quoting Phillips,

).

On appeal, however, we reversed, holding as to the general applicability

prong that the defendants presented insufficient evidence about, inter alia, the

purpose and scope of the emergency declaration. Rockland Cnty. Dep’t of Health,

. We decided that that the record was undeveloped as to “what

governmental interest the Declaration was intended to serve, which [was] relevant

to the question of whether the Declaration was ‘substantially underinclusive,’ and

therefore, not generally applicable.”

(citing Hochul, 17 F.4th at 284–85). We

noted that “Rockland County's interest in issuing the Declaration could [have

been] to stop the transmission of measles, which [could] lead a factfinder to

question why there was a medical exemption, where . . . medically exempt

children are every bit as likely to carry undetected measles as a child with a

religious exemption and are much more vulnerable to the spread of the disease

and serious health effects if they contract it.”

(alteration adopted) (internal

24 quotation marks and citation omitted). We further noted, “[o]n the other hand . .

. the purpose of the Declaration could be to encourage vaccination.”

In such a

situation, we concluded that what animates a seemingly facially neutral regulation

that appears to be underinclusive is a “fact-intensive question that should be

explored at trial through the examination of evidence that supports or

undermines” the various potential purposes.

Accordingly, we held that,

“because factual questions about the Emergency Declaration pervade the issues of

neutrality and general applicability, the question of what level of scrutiny applies

cannot be resolved on summary judgment, and Defendants fail to meet the high

burden required to prevail at this stage.” 3

Notwithstanding this precedent and the many factual and legal questions

regarding the general applicability prong in this particular case, including the

imprecise nature of Connecticut’s asserted interest in regulating religious conduct

in this manner, the majority opinion concludes as a matter of law, at the motion to

dismiss stage, that medical exemptions and religious exemptions are not

3 I agree with the majority that Rockland County also contained facts regarding potential anti-religious animus, which impacted the neutrality prong of the Smith test, and are absent in this case. See Ante, at 31–32. However, our denial of summary judgment on the general applicability prong in Rockland County was separate and independent from the evidence of anti-religious animus supporting the plaintiffs’ claim on the neutrality prong in that case. 25 comparable for free exercise purposes in the context of this mandatory vaccination

statute. The majority does so even though it concedes that the aggregate health

data supporting such a distinction is “sparse,” and even though a remand would

not only provide Connecticut with an opportunity to more clearly articulate its

asserted interests in regulating religious conduct in this context, but also would

also allow plaintiffs the opportunity to engage in discovery regarding why

Connecticut asserts that allowing medically exempt children to attend school

poses a lower risk of spreading communicable diseases than allowing religiously

exempt children would. This would require further fact-finding about, among

other things, the number of students trying to claim a religious exemption, who

would not be subject to the legacy provision, versus the number trying to claim a

medical exemption. Such information may help uncover the comparable risks and

threats posed to school children by the two classes of exemptions. In addition,

facts concerning the impact on herd immunity levels based on the number and

types of exemptions being claimed would further help explain if the two

exemptions are comparable in light of the asserted interest. 4 Obviously, after

4 The majority opinion quotes Governor Lamont who stated upon the signing of the Act that “[t]his legislation is needed to protect our kids against serious illnesses that have been well-controlled for many decades, such as measles, tuberculosis, and whooping cough, but have reemerged.” Ante, at 44 (internal citation omitted). However, it is 26 gathering such discovery from Connecticut, plaintiffs would have the opportunity

to submit any evidence to the district court at summary judgment undermining

Connecticut’s position.

I emphasize that, after such discovery, plaintiffs may be unable to

demonstrate that the risks associated with religious and medical exemptions

under the Act are comparable, and the district court may conclude that the Act

falls within the broad ambit of public policy that satisfies rational basis review.

Moreover, even if plaintiff demonstrates that the Act lacks general applicability

following discovery, Connecticut will have the opportunity to argue that the Act

survives strict scrutiny. At this stage though, I narrowly conclude that it was error

for the district court to find the free exercise claim implausible as a matter of law

entirely unclear from the record at this juncture that these serious illnesses have re- emerged in a substantial way in Connecticut. For example, according to the Connecticut State Department of Health, with respect to confirmed cases of measles in Connecticut, there were four cases in 2019, zero cases in 2020, and two cases in 2021. Conn. State Dep’t of Pub. Health, Case Occurrence of Selected Diseases (Connecticut), https://portal.ct.gov/DPH/Immunizations/Case-Occurrence-of-Selected-Diseases- Connecticut (last visited July 19, 2023). Moreover, there was also at least one confirmed measles case in Connecticut in 2010, 2011, and 2012, all of which were before the purported concern regarding the material increase in religious exemptions.

Furthermore, while justifying the repeal of religious exemptions based on this articulated concern about the risk of re-emergence of illnesses caused by the increasing number of those exemptions, the Act actually expanded medical exemptions so as to allow reasons that are “not recognized by the National Centers for Disease Control and Prevention” but that “in [the provider’s] discretion results in the vaccination being medically contraindicated.” Public Act 21-6 § 7. 27 by making that critical fact-intensive determination on a sparse record before

plaintiffs have had the opportunity to conduct discovery or to present evidence

supporting their position on this issue to the court.

The majority opinion’s analysis not only extinguishes the free exercise rights

of Connecticut schoolchildren in the context of this Act, but has much broader

ramifications for free exercise rights of individuals in the context of vaccine

mandates more generally. The mandatory vaccinations required under the Act

are not limited to illnesses like measles, tuberculosis, and whooping cough.

Rather, the requirement extends to other illnesses, including a mandatory flu

vaccination for students. Public Act 21-6 § 1(a) (requiring “each child to be

protected by adequate immunization against diphtheria, pertussis, tetanus,

poliomyelitis, measles, mumps, rubella, haemophilus influenzae type B and any

other vaccine required by the schedule for active immunization adopted pursuant

to section 19a-7f”). Thus, if Connecticut or any other state or government entity

were to determine that mandatory COVID-19 vaccines for students were

necessary in the future, Connecticut could do so without providing any religious

exemption and survive rational basis review by invoking generalized concerns

about the need to protect the health of students and the general public.

28 The majority opinion’s analysis is also not limited to schools. Any

vaccination mandate imposed by a governmental entity upon its employees, or

even its residents, would be analyzed with the low constitutional bar of rational

basis review even if it had a medical exemption but no exemption for objections

based upon sincerely held religious beliefs. Therefore, challenges to any such

mandatory vaccination laws, whether for COVID-19 or any other illness which the

government deems sufficiently serious to warrant mandatory vaccinations in the

future, would similarly be unable to survive a motion to dismiss on general

applicability grounds under the majority opinion’s analysis once the government

invoked generalized concerns about public safety. Such an approach allows the

fundamental right of the free exercise of religion to be swept away under the

mantle of rational basis review without any meaningful factual inquiry as to

whether the differing treatment between the secular exemption and the religious

exemption is warranted, even where a religious exemption has existed under the

laws of a state for decades. This narrowing of judicial review of the government’s

decision to regulate religious conduct in the name of public health, while

simultaneously allowing the same conduct for one or more secular reasons, is

extremely troubling and inconsistent with the important religious rights enshrined

29 in the Free Exercise Clause. See generally Roman Cath. Diocese , 141 S. Ct. at 68

(“Members of this Court are not public health experts, and we should respect the

judgment of those with special expertise and responsibility in this area. But even

in a pandemic, the Constitution cannot be put away and forgotten.”).

Instead, consistent with the jurisprudence of the Supreme Court and this

Court, we should allow plaintiffs in such situations, before they are stripped of

their free exercise rights, the basic opportunity of discovery to attempt to show

that the Smith standard has not been met and, therefore, that such a law should be

subject to strict scrutiny.

Accordingly, I respectfully dissent from the portion of the majority’s

opinion in Section I Parts B(2)(b) and B(3) where it holds, as matter of law at the

motion to dismiss stage, that the Act does not lack general applicability and

affirms the dismissal of the free exercise claim under rational basis review.

30