NYVIC (New Yorkers for Vaccination Information and Choice)

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PERSONAL RELIGIOUS BELIEFS
are constitutional protection against compulsory immunizations

by Bonnie K. and Clinton Ray Miller
Health Freedom News, July 1989

Since 1983 there have been a series of decision by Federal District and Appellate Courts which have clearly established the rights of parents to have their children exempted from receiving immunization based upon their PERSONAL religious beliefs.

A New York attorney, James Filenbaum, has won almost every religious exemption case he has fought in his state. Thanks to Filenbaum, the opportunity to secure the protection of First Amendment Rights in the avoidance of immunization for ourselves or our children is now clearly available to those of us who have genuine religious beliefs against immunization.

Remember the first 16 words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

Remember, also, the name of the great New York lawyer who has won and is still winning many of the key cases which, in the past 6 years, have established several wonderful new federal court precedents: James Filenbaum.

Even though our religious beliefs are unique, we may now claim a PERSONAL religious exemption from compulsory immunization laws. This is a much broader base than was possible before Filenbaum won his landmark cases. One of the aspects of this exemption which is hindering a great number of people from utilizing it is the fact that many people view religion in traditional terms and do not feel the exemption can apply to them because they are not members of a specific church such as the Christian Scientists.

Religion goes far beyond simple membership in a church, attendance of services, adherence to prescribed dogma, or participation in various rituals.

In a telephone interview for this report Filenbaum explained: 'The right to claim exemption from immunization based on religious beliefs is available to all persons who hold religious beliefs against immunization regardless of what any state statute may say regarding the necessity for membership in any particular religious group or church.

"The first amendment to the U.S. Constitution prohibits states from discriminating between people based on their religious beliefs. If there is any state law which allows for exemption based on religious beliefs, it is available to all those people who hold religious beliefs against immunization even if their beliefs are personal and unique to them alone.

"These fights have been firmly established by numerous decisions of the U.S. Federal Courts.

"We have been able to convince the court that a whole body of law which prohibits religious discrimination applies to those who have personal religious beliefs against immunization."

"We may now claim a PERSONAL religious exemption from compulsory immunization laws."

Filenbaum is only 39 but he is already in the top 10 of our list of the greatest health freedom lawyers of our age.

Filenbaum explained further, "The important legal precedents which we set in the area of religious freedom and health freedom issues can be applied on a national basis. Each case must be analyzed on its own merit. However, the basis for achieving success has been established and the fundamental principles of freedom of religious worship as provided by the founding fathers of our country must be respected and enforced to protect all those who am seeking protection from immunization based on religious beliefs."

Fortunately, 48 states, all but Mississippi and West Virginia, already have some kind of a religious exemption clause in their "compulsory" immunization laws.

We are all indebted to the health freedom patriots who fought very hard many years ago to win these religious exemptions.

Admittedly the language of these excessively narrow state religious exemption laws state or imply that, to qualify for a religious exemption, a person must be a member of a "recognized religious organization" whose tenants are against immunization.

Key Words: "ORGANIZED" and "PERSONAL"

Until Filenbaum won his landmark cases, very few churches would support the personal religious beliefs of their members who wished to qualify for a personal religious exemption to immunization laws.

Thanks to Filenbaum and some perceptive federal judges, several excellent precedents have been established in federal law which hold that we really don't have to belong to an organized religion, even if the language in any state stature says we must. A PERSONAL religious conviction against immunization is now sufficient.

Filenbaum said, "Many people with whom I come in contact have objections to having their children immunized but don't perceive that their objections are based upon religious beliefs. The reality of their problem, though, is that they don't understand what a religious belief is. What we have been successful at is informing people that their views of life, nature, the universe, spiritualism, the scriptures, and various other things can be interpreted as religious beliefs and that those beliefs can be used as a basis for securing exemption from immunization.

"There is no bright line test to determine if beliefs are religious or not. The distinction between philosophical beliefs and religious beliefs raise questions which scholars in those two disciplines could debate for generations. However, the standards set by the U.S. Supreme Court as to what may constitute a religious belief are so broad that we can prove that an individual has religious beliefs opposing immunization even when that individual didn't originally recognize his beliefs as religious."

Of Course There are Limitations

Filenbaum cautioned, "You can't lose sight of the limitations of pursuing First Amendment Rights in the context of securing exemption of immunization for school children. Public education is available to all children who are residents of a particular locality. If the school or the state can establish a rational basis for actions which would exclude certain children from attending then they can do so provided they are not violating any federally protected rights or other rights of the children. For example, unvaccinated children could be excluded from school during a measles, or other epidemic."

The Federal Courts have clearly ruled that while it is perfectly permissible for state legislatures to provide for a "religious exemption" to their immunization laws, it is illegal and unconstitutional to limit that religious exemption only to those persons who belong to an "organized religion."

Filenbaum explained, "By eliminating these requirements to belong to an organized religion then the ability of the government to restrict or control the claims of people seeking exemptions is eliminated. There is no simple way for public schools to determine whether a person's claim based upon religious belief is proper. Therefore, the religious belief exemption is now available to all those persons who sincerely hold, and can adequately express their claim for an exemption so that it qualifies as being based upon their religious beliefs."

Filenbaum's 1st Case (1982/ 83): an Orthodox Jewish Family

Filenbaum's first case is now known as Rockland County N.Y. -v- Moses and Chana Silver case. This case was reported extensively in the media but was not covered in the law journals. It was a case in family court and few family court cases are reported in law journals. This case ended in the middle of the trial when the county abruptly withdrew their charges against the Silvers and the case was dismissed.

Three Rabbinical Judges from the Jewish Court in Brooklyn testified that Silver's religious belief opposed to immunization was compatible with being an orthodox Jew. Silver was also a Rabbi.

In addition, Dr. Robert Mendelsohn, the immediate past president of the National Health Federation, testified as to the dangers and risks of immunizations. He testified specifically that, in his expert opinion, there are more causes of polio induced by immunization than would occur otherwise. He also presented evidence that the reduction in the incidence of certain communicable diseases was the result of improved modern health practices and the cyclical nature of the disease and was not the result of the polio vaccine.

In the subsequent federal court action of Silver -v- Rockland County, money damages were recovered by Filenbaum for the wrongful prosecution of the Silvers by the county.

Background History of the Silver Case

The Silvers had refused to have their youngest child vaccinated because they had come to believe that the immunization could possibly injure Abraham, their son. They developed these beliefs because they had recently taken on a holistic way of life. They also felt that this way of life was consistent with their devoutly held religious beliefs and that being an orthodox Jew included prohibitions against immunizations.

Filenbaum said, "Tragically, both Moses and Chana Silver were now being threatened by U.S. government officials as they had been when they were children in Nazi, Germany. Both parents were survivors of the Holocaust during the second World War. At that time Moses survived as a child only because he hid many months with his Jewish relatives in a basement.

Chana was forced to secret her Jewishness and pose as a Christian in a convent. Now, forty years later, the local government was threatening to take their child, Abraham, away from them because of their religious beliefs. The proceeding was brought against the Silvers charging them with "neglect" for failing to immunize Abraham. If there had been an adjudication of neglect by the Silvers' then the court would have had the authority to remove their son from their custody and have him forcibly immunized against their will.

Moses and his wife Chana had 10 children. The older children had been immunized. When they decided not to have Abraham receive his shots the Rockland County Department of Social Service was outraged and charged the Silvers with child neglect.

The Jewish Press, a national newspaper, and other media brought significant public attention to the story. Because of the publicity and exposure of the facts in the case to public scrutiny, public opinion started to recognize the plight of the Silver's position as being victimized by an overzealous prosecution. The county dropped the case.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

Second Case (1984): Clinton Central School District -v- Robert and Katherine Allanson -- A Precedent Setting Case

Robert and Katherine Allanson had been believers in the macrobiotic way of life and had been so involved and committed he was a teacher a the Kusi Institute in Boston.

Over a period of years their beliefs evolved so that they had their own beliefs as to life, health care, diet an religion.

Robert established a clinic in Clinton, N.Y. for holistic health care which he practiced as a means of earning a living. Part of their beliefs was a belief against immunization. When school officials discovered their two children had not bean immunized they ordered their immediate suspension from the local Clinton schools. Local county authorities also started child neglect charges against the Allansons.

The American Natural Hygiene Society and Dr. Mendelsohn referred the Allansons to Jim Filenbaum who had come to their attention because of the Silver case. As noted above, the Silver case was Filenbaum's first case involving immunization.

After initial consultations with the Allansons, Filenbaum advised them to request an exemption from immunization for their children based upon New York's public health law section 2164(9) which provides for exemption from immunization for school age children if they are "...members of a recognized religious organization whose beliefs are opposed to (immunizations)..."

Following Filenbaum's advice the Allansons requested exemption from immunization based upon their PERSONAL religious beliefs and not based upon membership in a religious organization. As expected, the school district rejected the Allanson's request for an exemption based upon their personal religious beliefs as being inadequate because they were not members of a "recognized religious organization" and further advising that their children would be suspended from attendance at school unless immunized.

Filenbaum immediately filed suit in federal court against the school district and the school education department. He claimed that the school and state were violating the Allanson's First Amendment Constitutional Rights of freedom of religious worship.

This lawsuit also claimed that the state immunization statute was unconstitutional in that it insidiously discriminated between people based upon their religious beliefs by granting to members of "recognized organized religions" certain rights and denying those rights to people who had similar personal religious beliefs but were not members of recognized, organized religions.

As far as we have been able to determine, this is the first time any person has ever asked a federal court for an exemption based on personal religious belief.

Filenbaum said, "I became aware of the unconstitutional aspects of the religious exemption aspects of the immunization statute when I first read it while working on the Silver Case."

Filenbaum told us he felt it was the perfect case to challenge the immunization statute. The factual circumstances were: 1) The children had been suspended from public school for lack of immunization. 2) The Allanson's refusal to have their children immunized was based upon their personal religious beliefs as well as their health and philosophical beliefs. 3) The Allansons had a strong background demonstrating a commitment and sincerity to their way of life and their personal religious beliefs. In other words, they were for real!

Initially the case was assigned to Federal District Court Judge Roger J. Miner who ruled upon Filenbaum's request for immediate temporary relief allowing the Allanson's children back in school pending completion of the case.

Judge Minor ordered the school to immediately allow the readmission of the Allanson children to school and directed immediate trial of the case (in 1984).

At the trial Bob Allanson testified as to his background in macrobiotic and his personal growth from those beliefs to his then current beliefs. He believed that the universe was one continuing entity; that there was a force that controlled all of life's essences; that this process which he called life was God's way; and that immunization was a sacrilegious deviation from his personal religious belief.

Filenbaum also called Professor Williams, head of the religion department at Hamilton College, New York as an expert witness.

He testified that he had interviewed the Allansons and found their personal religious beliefs to be a type of pantheism, a view which sees God in all things. He also testified that their beliefs were similar to Taoism and other far eastern religions and also bore certain similarities to traditional religious beliefs of some American Indians.

Professor William's analysis of the Allanson's beliefs clearly established that they were, in fact, religious beliefs.

The court ruled that it was constitutionally impermissible to distinguish between religions in claims for exemptions for immunizations and that the statutes providing for exemptions for religious beliefs must be interpreted so as to grant to individuals claiming exemptions for personal religious beliefs the same rights as are afforded to members of recognized religious organizations!

Judge Miner found that the Allanson's beliefs constituted personal religious beliefs entitling them to religious exemption and ordered that the school district allow the Allanson's children to remain in school without being immunized.

As soon as Filenbaum filed in the Federal Court, the county social services departrnent agreed to withhold action on the child neglect case pending the outcome of the Federal Court Case. With the victory in the Federal Court Case, the county dropped the child neglect case.

What Constitutes a "Personal Religious Belief?"

We asked Mr. Filenbaum what constituted a "religious belief." He said:

  • A person's religious belief may, but doesn't have to, include belief in a Deity.
  • A person's religious belief may, but doesn't have to, be consistent.
  • A person's religious belief may, but doesn't have to, be coherent
  • A person's religious belief may, but doesn't have to, be understandable to others.

On the other side:

  • The personal religious belief must be paramount in a person's life.
  • A person must be living by these beliefs.
  • There is nothing in the law to prohibit people from claiming a religious exemption even if they are "sinners."

Shortly before he died, Dr. Robert Mendelsohn wrote New York Attorney James Filenbaum as follows:

Dear Jim:
Congratulations on again beating the fanatical immunization lobby, as reported in the Watertown Times, no immunization case has been lost in the 5th Judicial District or in Federal Courts Statewide (New York) when parents have asked for exemption based on religious grounds even if they have not belonged to an organized religion. 
                                                                       Bob

Three Legal Precedents Upholding Exemption

In the following three cases federal courts have greatly expanded a persons Constitutional right to a religious exemption to now include any person who has a PERSONAL religious belief opposed to immunization:

1. Shen' and Levy -v- Northport-East Northport Union Free School District, 672 F. Supp. 81, (E.D2,[.Y. 1987). Persons seeking religious exemptions must have sincere religious beliefs prohibiting immunization. These religious beliefs may be tested in a court of law.' In the Sherr/Levy case they were. The court found Levy's beliefs to be sufficient to qualify for the personal religious belief exemption while it found Sherr's beliefs insufficient.

Judge Leonard Wexler ordered the state education department and the school district to pay monetary damages to Filenbaum and his client! This case has been a watershed decision in terms of litigation on this issue because it mandated that the state and school districts honor claims for exemptions for immunizations based on personal religious beliefs under threat of court sanctions and monetary penalties.

2. Al.lanson -v- Clinton Central School District, No. CV 84-174, slip op at 5, (N.D.N.Y. May 10, 1984) The judge (Roger J. Miner) ruled for the Allansons on every point.

3. Mason -v- General Brown Central School district, 86-CV-209 (N.D.N.Y. Sept. 1987). In the Mason case the principles of a personal religious exemption were reaffirmed without question, but the court (Judge Howard Munson) found that Mason's beliefs were more firmly connected to his Chiropractic background and were not religious in nature.

Filenbaum said many people have secured exemptions based on their personal religious beliefs upon application to the school. He has been able to consult with these people counseling them as to the best method of submitting the application, appropriate language to be utilized and other legal aspects of their application for exemption. Virtually all persons seeking exemptions based on their personal religious beliefs have been resolved without litigation. The legal precedents have been well established. They are no longer challenged by the school and state officials. The federal courts rely on the decisions as accepted legal authority and have even gone so far as to mandate compliance with their decisions directing inclusion of personal religious beliefs as grounds for exemption from immunizations and further ordered school districts and the state to pay monetary damages when they have improperly denied a persons claims for exemption based on religious beliefs.

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