YOUR EXEMPTION QUESTIONS
When Are Exemtpion Laws Not Valid?
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I’m sure this won’t come as a shock to anyone reading this, but some authorities overstep legal boundaries from time to time. This can happen deliberately or by accident. A recent vaccine exemption question brought to light instances where state authorities have crossed legal boundaries both inadvertently and deliberately (most likely), in Pennsylvania and New Jersey, respectively.
Pennsylvania’s religious exemption law for grade school children allows an exemption “on religious grounds or on the basis or a strong moral or ethical conviction similar to a religious belief.” This statutory section is labeled “Religious exemption,” yet the state health department has chosen to interpret the “moral or ethical conviction” phrase to include philosophical objections. Perhaps that was deliberate on the department’s part to avoid confusion, but I suspect it was inadvertent. Health departments rarely if ever err on the side of “let’s be safe and allow more exemptions.” So, I suspect the policy is due to a misunderstanding of “moral convictions” phrase, legally. (But this is speculation on my part.)
The “moral or ethical” wording comes from legal precedent, past court cases that tell us how to interpret and apply laws. Over a period of decades, state and federal courts have interpreted our “free exercise” of religion in the First Amendment of the U.S. Constitution broadly. For legal purposes, “religion” includes moral convictions regardless of whether the convictions are associated with an organized religion. From a legal analysis perspective, then, Pennsylvania’s religious exemption law does not technically include philosophical objections. The religious exemption law was likely worded this way to underscore the fact that church membership isn’t required for a religious exemption. In this particular instance, the health department’s interpretation allows more exemptions, and that’s a good thing for health freedom advocates. But we shouldn’t be surprised if the health department changes their policy at some point to disallow philosophical exemptions. Such a policy change would be consistent with the wording of the exemption law, and the larger, long-term national trend of removing exemptions to increase overall immunization rates. Parents in Pennsylvania claiming an exemption on philosophical grounds would do well to consider whether such a policy change would affect them. If in doubt, consult a local attorney about the wording of the law and the safest way to exercise your rights in a way unlikely to be affected by a future health department policy change to exclude philosophical exemptions, should that occur. But because the definition of “religious” for legal purposes is quite broad, most people can qualify for a religious exemption regardless of how “religious” they are in common sense terms. However, where getting a religious exemption requires stating the beliefs, there are many pitfalls to avoid.
For more about our Constitutional rights see Constitutional Confusion.
For more about religious exemptions generally, see Religious Exemptions: Clearing Some of the Confusion.
The problem in New Jersey is a bit trickier. A health department regulation states: “Religious affiliated schools or child care centers shall have the authority to withhold or grant a religious exemption from the required immunizations . . . without challenge by any secular health authority.” Yet, the state statute makes no such distinction between religious and non-religious private schools. So, which law is correct—the statute or the regulation?
There’s a hierarchy in our legal systems. Federal law is a higher legal authority that state law, state law is a higher legal authority than local city or county law. Within each state’s legal system and the federal system, statutes are a higher legal authority than regulations. As a general rule (as there are exceptions everywhere in the law), if two different levels of law conflict, the higher legal authority “wins” or supersedes the lower level. So, the NJ health department has, arguably, overstepped it’s legal authority by promulgating (creating) a regulation that goes beyond the boundary of the state statute. That is, the health department doesn’t have the legal authority to allow religious schools to deny religious exemptions, because that conflicts with the wording of the state’s exemption statute.
Does the NJ health department know about this mistake? Yes. They posted a letter dated May 19, 2017, stating at the top of page 2: “Religious exemptions extend to private, parochial and public institutions.” This letter does not state, as the regulation does, that religious schools may deny religious exemptions.
As a purely practical matter, governments can create any laws they want to, whether they are good (legal) laws or not. Now, they’re supposed to create only good laws, but mistakes can happen, and overstepping legal boundaries can also occur deliberately when those in power choose to abuse their power. (I’ll pause while you get over the shock). The NJ health department knows they have a bad regulation on the books, but they’ve never bothered to revise or repeal the regulation.
It’s not enough to simply call out a bad law. All laws are regarded as “good” laws, meaning they are enforceable, unless and until a court rules otherwise or the enacting body (legislature or agency) amends or repeals the law. While this is inconvenient for those adversely affected by bad laws, it makes sense, legally. If all one had to do was say, “that law is a bad law” to escape its effect, there would be no good laws applicable to anyone anywhere. So, questionable laws must be formally challenged in court, and the challenge must be successful, for a bad law to lose its ability to be enforced; or, the enacting legislature or agency must be persuaded to fix the problem.
So, we’re left with conflicting information from the NJ health department: a regulation saying one thing, a published department letter saying something else. To be clear, only the regulation is formal law; the letter is, technically, only a statement of department policy. Agencies may not lawfully implement policies that are more restrictive than current laws, but they may craft policies that are less restrictive. The health department’s May 19, 2017 letter is less restrictive than the regulation, so is arguably lawful even though inconsistent with the regulation.
In practical terms, the health department has created an “out”—a way to respond to criticism of its regulation by pointing to it’s posted letter. But the letter is not a proper fix; it leaves a bad regulation on the books. Why would they do this? Perhaps because the likely net result is that fewer religious exemptions will be exercised in the state. Some people will see the regulation but not the letter, and go by “the law.” Others will find the letter, and mostly likely go by that. But a stubborn religious school could point out that the law allows them to refuse religious exemptions, and the posted department letter is not law. And while there’s a clear legal argument that the regulation oversteps the department’s legal authority, that’s only an opinion unless and until a court ruling confirms it. Since few parents would take a private school to court, it’s likely that some NJ private religious schools successfully deny religious exemptions, despite the posted 2017 letter.
When New Jersey parents find their child’s private religious school denying their religious exemption request, most will probably fare well by simply referring the school administrators to the health department’s published letter. (https://www.state.nj.us/health/cd/documents/imm_requirements/religious_exemption.pdf). But where the school refuses anyway, parents may be faced with a tough situation. Sadly, we can’t rely on today’s court systems to do the right thing, especially on controversial subjects involving powerful multinational corporations such as big pharma, big agriculture, big energy, etc. Sorry, folks, but the law just doesn’t apply to the powerful elite. The outcome in lawsuits challenging powerful interests is more likely to be based on power than on real science and law, at least in the big cases that could affect their agendas. The court systems in the U.S. are corrupt, and thus unreliable to give us the right answer or vaccines, for example. While this doesn’t necessarily mean we shouldn’t file lawsuits (nothing ventured, nothing gained), and we do win some of these from time to time, it does mean that until we also address the underlying power structure, we are likely to lose more and more lawsuits despite having the science and law on our side, until we successfully address the underlying corrupt power structure.
Alan Phillips, J.D.
Vaccine Rights Legal Expert
Have an exemption question? Contact Alan at email@example.com. Some questions may be addressed in future articles (with anonymity; no one’s name will be published).
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