I agree that the vaccination analysis might well vary, in some
situations, by the specific vaccine involved. But I’m not sure that the
priest/nun hypothetical really illustrates that.
One can intend to be a priest or nun, but people are notoriously fallible (I
believe Christianity has a thing or two to say about that), and have been known
to lapse despite their best intentions. Plus of course priests and nuns
sometimes deliberately leave the religious life, and 14-year-olds who intend to
become priests and nuns sometimes change their mind before they can actually
join.
Now, to be sure, HPV spread (like HIV spread) disproportionately
stems from those who have more sexual partners than from those who have fewer.
But it’s very hard for the government to know with any confidence who will have
few (or no) sexual partners – regardless of whether they say they will have few
(or no) sexual partners. Given this, if we think people should generally be
vaccinated against some disease (because of the danger that they will spread it
to others), I can’t see how there can be a vaccine exemption for people based
on their claims about their sexual intentions.
Also, as I understand it the HPV vaccine is generally urged for
people who have not yet begun to have sex. These will generally be minors, and
the objections will generally come from their parents. And a parent’s
prediction of their child’s future sexual behavior (or even future religious
behavior) strikes me as even less credible than the child’s prediction of his
or her future sexual or religious behavior.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Monday, February 02, 2015 10:16 AM
To: Law & Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder
One point which has not been mentioned in this thread is that homeschoolers and
religious communities oftentimes object to vaccination on a vaccine specific
basis, rather than an across-the-board objection to all vaccines. For
instance, as various states have considered adding the HPV vaccination
(http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx
), there has been substantial debate in religious communities over the
necessity for a vaccination related to a sexually transmitted disease.
It strikes me that the government's interest with regard to vaccinations may
vary widely based upon the particular vaccination involved (i.e. the government
would certainly seem to have a more compelling public health argument for
vaccination of diseases which are airborne or passed by mere physical contact,
whereas the argument appears far less compelling when dealing with diseases
passed solely through sexual activity). After all, what would the government's
compelling interest be to require HPV vaccination if a particular student
stated that they intended to be a priest or nun and adhere to an oath of
perpetual celibacy (or more likely, that the students simply meant to practice
abstinence)?
Stated another way, if vaccination is analyzed under a "third party burden"
perspective, doesn't that analysis vary by the specific vaccine involved?
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
From: Richard Dougherty <dou...@udallas.edu<mailto:dou...@udallas.edu>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Monday, February 2, 2015 11:39 AM
Subject: Re: Homeschooling, vaccinations, and Yoder
If I remember correctly, in Texas the tipping point was a court decision,
Leeper v. Arlington, in which the court recognized home schools as private
schools under Texas law.
Richard Dougherty
On Mon, Feb 2, 2015 at 9:56 AM, Ira Lupu
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
I did very similar research for a piece I wrote in the B.U. L. Rev. in 1987,
and found exactly the same thing -- courts very much resisted extending Yoder
into a general right to home school. They distinguished Yoder based on age of
the children and character of the relevant religious community (recall the
emphasis in Yoder on Amish self-reliance over a long period of time).
Legislatures and agencies did the work of extending the right to home school to
a much broader population.
On Mon, Feb 2, 2015 at 10:50 AM, Berg, Thomas C.
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:
Neal Devins’s article in the George Washington Law Review (1992 I think)
documents this dynamic: home-schoolers losing in court after Yoder but then
prevailing in legislature and agencies.
-----------------------------------------
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog:
http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice>
----------------------------------------------------------------------------
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
On Behalf Of Doug Laycock
Sent: Monday, February 02, 2015 8:31 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Homeschooling, vaccinations, and Yoder
This is impressionistic and not based on a systematic survey, but home
schoolers lost most of their cases challenging restrictions on home schooling.
For better or worse, courts said Yoder was only about the Amish. Home schoolers
won their battle in most states politically, through the legislature or through
continued pressure on the relevant state agencies.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 02, 2015 1:00 AM
To: Law & Religion issues for Law Academics
Subject: Homeschooling, vaccinations, and Yoder
I agree that homeschooling is a possible constraint on the
effectiveness of schooling-based immunization, though given the burdens of
homeschooling, I’m not sure how many people’s homeschooling choices are going
to be driven primarily by vaccination preferences.
But can you elaborate, please, on Yoder leading to “unregulated
home schooling”? As I read Yoder, it authorized an exemption from schooling –
with no requirement for further study, no requirement of passing various tests,
etc. –for ages 14 and up, and pretty strongly suggested that no exemption from
schooling would be available for materially younger children. Most
homeschoolers, especially those who homeschool in the prime vaccination years,
wouldn’t really get the benefit of Yoder as such.
More broadly, I don’t think there’s much in Yoder that suggests that any
exemption regime has to be “virtually unregulated.” And
http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and
http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the big
surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well after
Yoder. It certainly may be the case that there is such a strong causal link,
but I’d just like to hear a little more about it.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Sunday, February 01, 2015 9:27 PM
To: d...@crab.rutgers.edu<mailto:d...@crab.rutgers.edu>; Law & Religion issues
for Law Academics
Subject: RE: Vaccine objectors
one thought on Marty's point 1. The number of children being home schooled is
huge. If the vehicle for requiring immunization is schooling then many people
will avoid the mandate by opting out of schools. Virtually unregulated home
schooling is one of the consequences of Yoder.
*************************************************
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (p)
518-605-0296 (c)
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
on behalf of Perry Dane [d...@crab.rutgers.edu<mailto:d...@crab.rutgers.edu>]
Sent: Sunday, February 01, 2015 11:15 PM
To: Law & Religion issues for Law Academics
Subject: Re: Vaccine objectors
Marty,
I agree with # 1, except in states that might have a particularly robust state
free exercise doctrine.
I also agree with # 2.
The issue with respect to # 3, though, is this: What if it turns out that an
exemption regime limited to actual religious objections (and not "personal"
ones) did not produce serious third-party burdens because the number of kids
left unvaccinated would not be enough to compromise "herd immunity"?
Such a regime would, I believe, be constitutional. But it does raise at least
a question for folks who (a) argue that "religion is not special," (b) it is
generally unfair to limit exemption regimes to folks with religious motives,
and (c) the best remedy to such unfairness should generally be to "level up" to
include deep non-religious beliefs rather than "level down" to eliminate
exemptions entirely.
Perry
On 02/01/2015 10:38 pm, Marty Lederman wrote:
I'm a bit confused as to which question Perry and Sandy (and Doug?) are
discussing. To break it down a bit for clarification:
1. It would be perfectly constitutional for the state to require everyone to
be vaccinated; a fortiori, vaccination can be made a condition of attending
school. That's basically what the Second Circuit case is about; and of course
it's correct.
2. It would also be perfectly constitutional for the state to exempt any
children whose parents have a "personal" objection to immunization, religious
or otherwise. The only question as to those exemption laws is one of policy --
and I'd hope that recent events cause state legislatures to seriously consider
repealing such exemptions.
3. But if a state chooses to exempt people only for religious reasons, that
raises not only a policy question (which is the one I intended to raise in
starting this thread -- should other states follow MS and WV in refusing to
grant even religious exemptions?), but also a serious Establishment Clause
question, in light of the third-party burdens (those borne by the children who
are not immunized as well as the children who are made more susceptible to
disease). I haven't checked in a while, but I believe no court has ever held
such religious exemptions unconstitutional except where they discriminate among
religions. I am inclined to say that they are unconstitutional even where not
discriminatory; but the case law does not, as far as I know, yet support that
view.
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Richard J. Dougherty, Ph.D.
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University of Dallas
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