Hillel Y. Levin

Volume 68, Issue 6, 1193-1242

All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose third party harms in the context of states’ mandatory vaccination programs and proposes one approach to the line-drawing problem. This approach is consistent with the cases, offers predictable results in many situations, and accounts for relative judicial and legislative competencies. It suggests that in most cases, laws that offer religious exceptions, exemptions, or accommodations that impose third party harms are only unconstitutional if the law offers no comparable nonreligious exceptions

Under this approach, most states’ religious accommodations in the vaccination context violate the Establishment Clause. The Article also considers the relevant political dynamics and important implications of this conclusion.

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