Most of you already know that we have been fighting the battle to restore the religious exemption for schoolchildren in Connecticut for well over two years now, filing our federal lawsuit just two days after Governor Lamont signed the repeal bill into law on April 28, 2021. As we recently reported to you, the district court’s dismissal of our lawsuit by a district court judge was recently affirmed by the Second Circuit, meaning that the judges on the Second Circuit who heard our appeal agreed that the lawsuit should be dismissed. We also recently reported to you, however, that we were excited about this development because it puts us one step closer to getting the religious exemption restored not only in Connecticut, but in every state where it has been removed. Huh? We know that litigation can be confusing business (sometimes even for lawyers), so here are the answers to some of the frequently asked questions we’ve been receiving about our lawsuit and the battle to restore religious exemptions in Connecticut and beyond.
1. What was the Second Circuit’s ruling in the federal lawsuit filed by We The Patriots USA to restore the religious exemption to vaccinations for schoolchildren in Connecticut?
Answer: On August 4, 2023, the United States Court of Appeals for the Second Circuit upheld a decision of the U.S. District Court of Connecticut, which dismissed a challenge to Connecticut’s April 2021 repeal of the religious exemption to mandatory childhood immunizations for school attendance. In a split 2-1 decision, the three-judge panel decided that the repeal did not violate the plaintiffs’ free exercise of religion under the First Amendment to the United States Constitution, or their Equal Protection of the law guaranteed by the Fourteenth Amendment, among other things. The Court did find that the district court improperly dismissed one plaintiff’s claim under the Individuals with Disabilities in Education Act (IDEA), ruling that the lower court “erred when it found [plaintiff] Elidrissi had not stated a plausible claim for relief under the IDEA.” The Court remanded the case back to the district court to decide this one issue.
Judge Joseph Bianco sided with We The Patriots USA and the other plaintiffs in his dissent from the majority’s opinion. Judge Bianco wrote that the state failed to meet its burden of proving that the repeal of the religious exemption was necessary to protect public health, or that it was done by the least restrictive means available, both of which would be necessary to prove under strict scrutiny analysis, which he argued should apply here: “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 COVID19. 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.”
2. What is the next step for the We The Patriots USA lawsuit?
Answer: On August 17, 2023, we filed a petition to have the case reheard by the full panel of 13 judges on the Second Circuit (known as en banc review), as we strongly disagree with the majority decision issued by the three-judge panel that issued the decision on August 4, 2023.
As noted in our petition, we believe that “[t]he panel’s opinion endorses a public health state where the First Amendment does not constrain the state’s police power with respect to vaccination mandates so long as it contains a medical exemption. This holding contradicts Supreme Court precedent and creates a hopelessly confusing conflict among the Court’s precedents.” You can read the complete en banc petition here.
The Court must now decide whether to allow the case to be re-argued before the full bench of 13 judges. If the judges decide to grant en banc review, a hearing will be likely be scheduled for another oral argument before the full bench. If they do not grant en banc review, then the original August 4, 2023 decision of the Second Circuit will remain in place, and we will be able to apply for review by the United States Supreme Court (commonly known as a “cert petition”). The Supreme Court will then decide whether to take up our appeal.
3. What happens if the Supreme Court decides to take the appeal, and what is the expected timeline to get a ruling?
Answer: In order for the Supreme Court to hear our case, four of the nine Justices would need to vote in favor of taking our appeal. If that happens, the case would then be scheduled for a hearing before the United States Supreme Court. While we can’t say for certain when all of this would happen, it is entirely possible that we could have an en banc decision (or a rejection of our en banc petition) sometime in October, at which point we would very soon after file our cert petition to the Supreme Court. If the Supreme Court takes the appeal, a hearing would likely be scheduled for early next year, possibly in January. A decision would probably be issued sometime in June 2024. Again, none of this is set in stone, as the scheduling of hearings and the issuing of decisions is at the discretion of each court hearing the case.
4. Didn’t a federal judge in Mississippi already rule that schoolchildren are entitled to receive religious exemptions to vaccinations?
Answer: Yes. Due to the amazing work of Attorney Aaron Siri and the team at Siri & Glimstad LLP, on August 29, 2023 a federal district judge in Mississippi issued a permanent injunction ordering the State of Mississippi to allow parents to claim religious exemptions for their children attending school. The ruling stated, in part, that “[b]ecause Mississippi affords a discretionary medical exemption process by statute, it must similarly afford a religious accommodation process. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876 (2021).” You can read this ruling here.
However, that ruling applied only to schools in the State of Mississippi. The ruling is not legally binding in Connecticut or any other state outside of Mississippi.
5. Can’t a new lawsuit be filed in Connecticut, using the same legal theory that was used to win the case in Mississippi?
Answer: Although our lawsuit was filed and argued long before the Mississippi decision was issued, our attorneys did, in fact, make the same argument that won in Mississippi, but it was rejected by the Second Circuit. We argued that because Connecticut offered medical exemptions but not religious exemptions, they were favoring secular conduct over religious conduct, and therefore engaging in religious discrimination in violation of the free exercise clause of the First Amendment. We even cited the Fulton case relied upon by the judge in Mississippi (read our appeal brief here, particularly page 29). Unfortunately, the Second Circuit expressly rejected the Mississippi ruling as an “outlier” in a footnote:
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, 2023 WL 2998484, 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 id. 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, 2023 WL 2998484, 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 id. at *8. 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.” Id. at *10.
(Footnote 7)
In the body of its decision, the Second Circuit went on to say that
“[o]nly 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. … We decline to disturb this nearly unanimous consensus.”
The Court’s express rejection of the Mississippi ruling means that it has already decided that it will not follow the Mississippi judge’s lead. Although at the time the Second Circuit issued its decision in our case the Mississippi court had only issued a preliminary injunction rather than the permanent one it issued in late August, the point is that the Second Circuit already addressed the Mississippi decision and decided that it was not going to follow it – ruling instead to side with the “nearly unanimous consensus” of court decisions that have ruled that denying religious exemptions is Constitutional. As stated above, after the Second Circuit the next stop for our case is the United States Supreme Court. That is why we believe strongly that the We The Patriots USA lawsuit provides the best possible path to a victory that would restore religious exemptions in Connecticut.
6. If this lawsuit is successful, would it restore religious exemptions in other states where they have been lost as well, such as California, New York, and Maine?
Answer: Any ruling by the Second Circuit would be binding on all states within the Circuit – Connecticut, New York, and Vermont. If we are victorious at the United States Supreme Court, and the Justices rule that a state’s denial of a religious exemption to schoolchildren is unconstitutional, religious exemptions would then be available to schoolchildren in all 50 states, and all U.S. territories. We believe that this lawsuit has great potential to achieve that victory.
7. Is there anything I can do to help?
Answer: First and foremost, please pray for us. We believe strongly in the power of prayer above all else. We would also like you to know that we do not need donations for legal fees for this litigation, as this lawsuit was funded almost entirely by one donor, who resides outside the State of Connecticut. We did not fund this lawsuit on the backs of Connecticut citizens, and we remain committed to do this as affordably as possible. The families of Connecticut have suffered and sacrificed enough already at the hands of their tyrannical state government. They don’t need to feel the squeeze from us, too.
That being said, an appeal to the United States Supreme Court will involve additional costs beyond legal fees, such as filing fees and printing costs. If you feel moved to support our organization with a donation to help us defray these costs and others associated with all of the other work we are doing in Connecticut and across the country, we would greatly appreciate it. Monthly donations are especially helpful, as they allow us to have a predictable stream of income so we can budget for new legal efforts and other projects. Right now we are running a “Commit to Ten” campaign, in which we are asking all of our supporters to please consider committing to a donation of at least $10 a month.
If you have any other questions, we are always here to answer them as best we can. Please reach out to us anytime at [email protected] and we will respond as quickly as possible. God bless you all.
