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STATEMENT BY MICHAEL H. SUSSMAN, ESQ. IN OPPOSITION T0
LEGISLATION REMOVING RELIGIOUS EXEMPTIONS FROM STATE
OF NEW YORK

For decades, New York State has recognized that peeple with bona?de

. religious objections need not subject their children to vaccinations. Religious
exemptions are not provided only to those who belong to a recognized and
organized religion. Our courts have repeatedly ruled that one need not be a
member of an organized religious group to have sincerely?held religious beliefs

and qualify for such exemptions.

This recognition has been memorialized in state law and regulations
which cede to school districts or private schools, including religious schools,
the responsibility for evaluating and granting or denying written requests for

such exemptions.

Our courts have adjudicated denials of religious exemptions, determining
the bono?des of those seeking religious exemptions. Public health authorities
and legislators are not the arbiters of Whether someone qualifies for a religious

exemption.

New York is amongst the vast majority of states which recognize religious
exemptions to vaccinations. Recent federal regulations have recognized that

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religious beliefs must be recognized and respected in implementing the

Affordable Care Act.

As it has recognized religious exemptions, our state laws also
contemplate appropriate responses to outbreaks of contagious disease.
Specifically, our public health authorities and legislators have permitted the
quarantining of infected persons and places and the exclusion of unvaccinated
children with religious exemptions from their schools IF a case of such a

disease is reported therein.

In short, to date, our state has successfully harmonized two important
values: respecting religious exemptions from vaccinations and promoting

public health.

We should not now abandon that balance and attempt to extinguish
religious exemptions because there has been absolutely no demonstration that
the means and measures now sanctioned by our state?s laws and regulations to

combat contagious diseases have failed. They have not failed.

Rather, political leaders in affected communities abjectly DID NOT utilize
the techniques our laws recognize. For example, in Rockland County, the
outbreak of measles commenced in late September 2018. The County Health
commissioner did not quarantine the seven initially infected with the disease or
the places where they resided and worked. As the measles outbreak
continued, the County Health Commissioner and the County Executive did not

order a quarantine. Indeed, on April 4, 2019, the Rockland County Attorney

expressly disavowed use of this technique, stating it would be too difficult to
implement, though it is specifically authorized by our public health law in such

a case and his remarks had no known factual basis.

Indeed, it was not until ten days ago, more than six months after the
outbreak of measles in Rockland County that the County Health Commissioner

?nally issued an order directing those with the disease to remain at home.

Likewise, rather than focus on excluding unvaccinated children who
attended schools with measles, a plainly permitted measure, Rockland County
over-?reached, excluding healthy children for four months from a school with
NO outbreak or case and insisting that this school require those with religious
exemptions to vaccinate their children or live with their exclusion from

education.

In light of this highly irrational of?cial reSponse which adjured reliance
on the means and methods set forth in New York State law to handle the
outbreak, there is no current legal basis for doing away with religious
exemptions. There is no showing that the means and measures contemplated

by our laws are inadequate to deal with the current outbreak.

Indeed, the stampede to do away with such exemptions has no rational
basis where, as here, the methods provided by state law to combat an outbreak

have not been used and found wanting.

Furthermore, it would be one thing if our public health officials could

conclusively demonstrate that religious exemptions are at the root of the

3

spread of the disease or that they tried the methods provided by our law but
these failed. But advocates of ending religious exemptions cannot credibly
advance these arguments. They never did what they should have done.
Moreover, there is no way to rationally claim that the means and methods
provided now by our state law failed when officials failed. to implement those

measures.

Moreover, we know that ending religious exemptions is no panacea;
measles has spread amongst vaccinated populations and not spread in

locations where the vaccination rate is quite low.

Religious beliefs and observance are protected by both the First
Amendment and our State Constitution. A compelling state interest is required
to overcome or burden a deeply held religious belief. In light of the failure by
our elected or appointed leaders to implement the means and measures
current state law provides to fight contagious disease, the State cannot show
any compelling basis for rescinding religious exemptions. A state which
nulli?es such exemptions absent such a compelling basis subjects itself to legal

challenge.

Striking the religious exemption altogether is tantamount to adopting a
nuclear option where other means of warfare have not proven ineffectual. This
is morally irresponsible and poor public policy, a plain indicator of the impact

of public hysteria on policy~makers

Opponents of religious exemptions have taken to trotting out intimated
religious leaders to pronounce that their religions do not oppose vaccinations.
But, even if this were true, these views are not determinative as to the bona
?des of such exemptions. Religion is an inherently personal expression and
our courts have repeatedly held that religious exemptions are a matter of
individual religious conviction, whether or not based upon an established
religion. Moreover, the narrative that religious leaders have all renounced
religious exemptions is false. Numerous religious leaders have recognized that
their faiths offer a doctrinal basis for claiming religious exemption to
vaccinations. This is why our state and 46 others have recognized such

exemptions for decades.

It is no secret that there is a large amount of hostility in the Hudson
Valley, particularly Rockland and Orange Counties, directed toward the
increasing religious Jewish population. Doing away with the religious
exemption will not pacify those who find this population?s steep increase
offensive. And, legislation which is motivated by a desire to punish insular
minorities has been routinely struck down as a violation of the equal protection
clause of the Fourteenth Amendment and analogous state constitutional

provisions.

Here, there is no rational basis for doing away with religious exemptions
in light of the failure by Rockland County leaders to combat the measles

outbreak as permitted and contemplated by state law and regulation.

Moreover, the move to do so bespeaks of an irrational and indefensible attack

on an insular minority.

Finally, those who support ending religious exemptions have to answer
hard questions: do they favor simply banning the children of those who will not
vaccinate from school? Are they willing to criminalize a person?s refusal to
vaccinate on religious grounds and, if so, what sanctions do they intend to
impose? Are people going to required to subject their children to every
available vaccine, regardless of new studies demonstrating that some vaccines,
the MMR, never have been proofed on populations? Are we going to
imprison people who refuse to vaccinate? Are we going to deprive their
children of an education, extinguish their parental responsibility for their

children?

Those who support doing away with the religious exemption must answer
these questions or they are proposing no solution at all. That there is no
longer a religious exemption does not mean that those who have that
exemption will suddenly vaccinate. And, if having eliminated the exemption,
the State is not willing to enforce this by requiring mandatory vaccinations,

then the move is exposed as nothing but an ineffectual stunt.

We cannot move down a road where we consign to state authority
decisions which should be private and personal. Informed consent and

religious exemption are concepts deeply rooted in our tradition for a reason:

they can be harmonized with public health concerns and they represent critical

American values.

I strongly urge every legislator to vote ?no? to retracting the protection
state law and regulation now provide those with sincerely held religious beliefs.
Succumbing to public hysteria and the media frenzy to do ?more? about the

current outbreak makes for veiy bad public policy.

Michael H. Sussman, Esq, May 2, 2019