Photo Credit: AP Photo/Seth Wenig
A sign advertising free measles vaccines is displayed at the Rockland County Health Department in Pomona, N.Y., in March.

Last week New York State eliminated the religious exemption for vaccines. The bill means that the New York law requiring parents to vaccinate children against a range of dangerous diseases – and prohibiting children from being admitted to school without those vaccinations – no longer has a provision that exempts parents from doing so because of a religious objection.

The religious exemption provision had come under fire in light of the recent measles outbreak; according to the Center for Disease Control, there have been over 1,000 measles cases reported in the United States this year, with outbreaks persisting in both New York City as well as in Rockland county. This ongoing public health emergency, combined with reports of the presence of a persistent, if quite small, minority within the Orthodox Jewish community advocating against vaccination, led to increased pressure and urgency to eliminate the Public Health Code’s grant of a religious exemption from vaccinations.


Let me be clear: the elimination of the religious exemption from vaccination should be celebrated unequivocally. First, it represents a vital safeguard against the dangers of the measles outbreak. Second, and somewhat counterintuitively, it also bolsters New York’s commitment to religious liberty.

Legal protections from religious liberty come in two categories. The first, like the religious exemption to vaccines, are narrow statutory carve-outs from specific laws. So, for example, some states – while maintaining the standard legal prohibition against alcohol consumption below the age of 21 – have a specific exception allowing minors to consume alcohol as part of a religious service. In the second category are broad state or federal protections that set ground rules for what happens whenever religious practice and legal prohibitions clash. The most famous example is the First Amendment, which prohibits government from enacting laws that target religion. In this second category, the religious liberty protections do not simply apply to one legal rule or requirement; they are broad and apply to all instances of conflict between religion and law.

The fundamental problem with the now-defunct religious exemption to the vaccine requirements is that it had no counterbalance. Put differently, the specific religious exemption to New York’s vaccine requirement provided any religious objector with a pass no matter what the consequences were for society in general. In this way, the unbridled religious liberty of the vaccine exemption posed a public health danger that the original drafters of the law simply had not accounted for.

But the fact that the religious exemption was eliminated does not mean that the state should now begin eliminating other religious liberty protections. To the contrary, it is a reminder that what states need are not narrow religious exemptions from specific laws. What states need – and, importantly what New York has – are religious liberty frameworks that provide broad ground rules for how conflicts between law and religion should be hashed out.

In New York, religious liberty is protected by the state constitution. And the New York Court of Appeals – the highest state court – has interpreted those protections to prohibit the government from imposing burdens on religious practice absent some sort of important government objective; indeed, this standard provides even broader protections than the federal constitution’s First Amendment.

Applied to the recent vaccine wars, New York’s framework would lead to the following result; the vaccine requirement burdens the purportedly religious practices of some New York citizens, but those burdens are justified because of the important government interests at stake – an extreme threat to public health.

This kind of balancing of religious liberty and government interest is the kind of religious liberty that is sustainable in the long term. If there is any lesson from the clashes over vaccines, it is that religious liberty rights that exist without limit simply won’t stand the test of time. They fail to give government a counterbalance in instances where the threat posed by a particular religious liberty claim is simply too dangerous for society to bear. And if the law only has such unyielding religious liberty protections, society will ultimately turn on them.

By contrast, overarching religious liberty frameworks – like those embodied in New York State constitutional law – protect religious liberty, but also include a safety valve when the costs of religious liberty present an unacceptable threat to the public.

Of course, reasonable minds will differ over where to draw the line. And advocates of religious liberty will rightfully press to ensure that the exception does not swallow the rule – that for the most part, states continue to protect religious liberty. In this way, the lesson from the vaccine wars is that government cannot adequately protect religious liberty with narrow exemptions from specific laws; repeated legislative drafting of specific religious exemptions across the landscape of government regulation is all too likely to go awry.

Instead, states must protect religious liberty with broad rules that protect citizens across the board, retaining a safety valve for instances where religious claims threaten the most vulnerable among us. This is the recipe for long term, robust and sustainable protection of religious liberty – one of the most vital protections afforded citizens in a democratic society.


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Michael A. Helfand is a Professor of Law and Associate Dean for Faculty and Research at Pepperdine University School of Law.