In 2014 all states except Mississippi and West Virginia had religious or philosophical exemptions for K-12 school vaccine mandates, in addition to the option of a medical exemption. But in 2015, pro-vaccine advocates successfully passed legislation in California repealing that state’s historic personal belief exemption for childhood vaccines. This sent a shockwave throughout the country, and freedom advocates went into action.  With passionate and heated debate, the Connecticut, New York, California, and Maine non-medical exemptions were removed by legislation. But in 2023, Mississippi passed legislation to add a religious exemption. And West Virginia successfully passed legislation in 2024 to add a religious exemption, but the Governor vetoed the bill. 

Now the courts are involved, and the key question is whether it violates the First Amendment’s Free Exercise clause to have a vaccine mandate without a religious exemption. One issue that arises is whether having a medical, but not a religious, exemption effectively discriminates against religion.

Rational Basis v. Strict Scrutiny

In upholding exemption repeals, some courts have used a “rational basis” standard and test; this is a low standard in Constitutional law and usually means the law in question will be upheld. On the other hand, other courts have used the “strict scrutiny” test; under this test a law must be in furtherance of a compelling state interest and must be structured so as use the least restrictive means, or be “narrowly tailored,” to meet that interest.

Exemption in Place Since 1959

Connecticut’s K-12 vaccination mandates were created by statute back in 1872. A religious exemption was added in 1959, and there have been no disease outbreaks tied to this law according to plaintiffs. In 2021, the state removed its religious exemption for these vaccines, while retaining a medical exemption. That same day, activists and parents decided that this 2021 law should be challenged all the way to the Supreme Court if needed.

Attorney Offers Overview

Now, in the case of We The Patriots USA v. Connecticut Office of Early Childhood Development, it appears that these activists may get their day at the high court. Civil rights attorney Brian Festa is Vice-President and Co-Founder of the plaintiff group We The Patriots USA. On April 25, Mr. Festa offered an overview of how this case has proceeded and its prospects at the Supreme Court.

Two Days to File Lawsuit

Mr. Festa’s journey in vaccination law began when his own child suffered a vaccine injury. Determined to help other kids, Festa, who was a Connecticut parent, fought for that state to keep its religious exemption. When the state’s Governor signed the exemption repeal into law on April 28, 2021, it took mere two days for Festa and colleagues to file the case now under consideration for review by the nation’s highest court.

Connecticut Must Respond by May 20, 2024

After a negative ruling by an appeals court, on December 11, 2023, We The Patriots filed its Petition for SCOTUS to hear the case. In a common tactic, the state of Connecticut chose not to file a response. Then, in a rare move, on February 5, 2024, SCOTUS ordered that state to file a response to the request to hear the case. After getting two extensions, Connecticut now has until May 20 to respond. If at least four Justices vote to grant certiorari, the Supreme Court will hear this case on the merits.

Case Ripe for Supreme Court?

Mr. Festas expects that if the court takes up the case it would be heard in October or November of 2024, with a ruling likely in early 2025. He noted that while SCOTUS receives about eight thousand petitions for certiorari every year, it usually agrees to review about eighty of these. At the same time, given the rare request for a response from Connecticut, the evolution of Supreme Court decisions on religious freedom, and mixed opinions from lower courts, Festas believes there is a good chance that they will be in the 1% of petitions that are heard yearly. He argues that another factor in their favor is that the appellate court ruling being challenged was not unanimous.

Amicus Curia Briefs

Both Physicians for Informed Consent and the Wagner Faith and Freedom Center filed amicus curia briefs in support of We The Patriots. PIC’s brief gives us a preview of what the high court may decide later this year. They note that the lower courts in this case should have applied the strict scrutiny standard due to the existence of secular (medical) exemptions. And while attorneys usually focus narrowly on the issues before the court, PIC points out the major scientific questions around whether vaccines are either safe or effective in the course of their briefing.

Fulton v. City of Philadelphia

PIC offers that in Bosarge v. Edney the United States District Court found that Mississippi’s vaccine statute was unconstitutional, due to allowing medical, but not religious, exemptions. We covered that case at the time here. And PIC leans heavily on Fulton v. City of Philadelphia, a Supreme Court case from 2021 stating that a “law…lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” And when a law is not generally applicable, government actions must satisfy strict scrutiny. The remainder of PIC’s filing offers evidence that our current vaccines are neither safe nor effective as advertised.

Case Funded by Donations

The plaintiffs’ litigation costs in We The Patriots USA v. Connecticut Office of Early Childhood Development are being funded by donations; if you want to contribute to this case, you can do so here.