by Kelly Himes Brolly, author of “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023).

Religious Freedom and the American Academy of Pediatrics’ Call to End Nonmedical (Religious) Vaccine Exemptions

Without question, legal challenges to protect religious freedom and parental rights are in the news. This summer, the United States Supreme Court decided an important case supporting the religious freedom of all parents with children in public schools. The Court held that parents have the right to “opt out” of instruction that “poses a very real threat to undermining the religious beliefs and practices” that they are trying to instill in their children, and “[g]overnment schools, like all government institutions, may not place unconstitutional burdens on religious exercise.” Mahmoud v. Taylor.¹

Now, it appears that vaccine mandates and state laws that prohibit nonmedical (religious) exemptions, which are required for children to enroll in public schools, may be the next big legal challenge involving religion and parental rights.

On July 28, 2025, just one month after the Mahmoud v. Taylor decision, the American Academy of Pediatrics reaffirmed its call for an end to nonmedical (religious) exemptions for routine childhood vaccinations, which are required by public schools.

Although Georgia currently permits religious exemptions for childhood vaccines, at least five states do not, and more are likely to follow. If you are thinking about our U.S. Constitution and our First Amendment right to free exercise of religion, you are probably wondering, “Can they do this?” Good question, but the real question is whether laws prohibiting religious exemptions will be deemed “constitutional” or “unconstitutional,” if, and when, they are challenged in the courts.

Constitutional Rights are “Asserted” in Cases

Let me explain. There may be hundreds, if not thousands, of laws being enforced and government actions taking place that, if challenged, the courts would deem “unconstitutional.” However, courts do not, as a matter of course, review newly enacted laws by state and federal legislatures to determine whether they are constitutional. Likewise, courts do not monitor state and government officials’ actions and determine whether they are constitutional. In fact, courts specifically avoid and refuse to hear hypothetical cases.

As a result, someone or a group of people affected by the law or government action must challenge it under their federal or state constitutions. (Yes, each state constitution also has a bill or declaration of rights that is similar to our federal constitution.) Once a case is brought, the courts will determine whether the law or government action is constitutional, and if the United States Supreme Court decides the case, the decision reverberates across the nation, affecting the law of the land, all because of one case.

You Know More Than You Think!

This may seem like new information to you, but think for a minute. If I say the word “abortion” can you name the case, or two cases? If I say, “You have the right to remain silent, anything you say can and will be used against you . . . .” Does the case name Miranda come to mind? These are the cases that were brought against laws and government actions, and in turn, these cases decided our rights. Those on the left side of the political spectrum know this system – and use it. They have a history of challenging laws and government actions, and I am personally thankful for some of them.

On the other hand, those on the right are beginning to learn the system, and, more importantly, that our rights are not handed to us; they must be asserted, and this can be uncomfortable for the rule-followers among us.

To be clear, I am not suggesting any opinion on vaccines nor am I providing legal advice. My underlying angst is that too many people are uninformed about our constitutional rights, perhaps even our legislators.

State Laws Prohibiting Religious Exemptions for Vaccines

Now, returning to vaccines and religious exemptions, “Can state legislatures pass laws prohibiting religious exemptions for childhood vaccines?” Yes, but the real question is whether laws prohibiting religious exemptions can pass constitutional muster if, and when they are challenged. Remember, “constitutionality” is ultimately determined by the courts, and whether a law is constitutional turns, in large part, on the standard of scrutiny that the courts apply to the law.

“Standards of Scrutiny” and the Kitchen Strainer

Again, let me explain. Courts apply different standards of scrutiny to laws and government actions depending on the constitutional rights at issue. Some constitutional rights are considered more sacrosanct than others, and laws that infringe on those rights receive a higher level of scrutiny. For example, laws that infringe on the most important rights receive “strict scrutiny.” With strict scrutiny, the law or government action must be “narrowly tailored to achieve a compelling governmental interest.” The lowest level of scrutiny is “the rational basis test,” where the law must be “rationally related to achieve a legitimate, conceivable governmental purpose.” Intermediate scrutiny falls in between the two, and the law must be “substantially related to achieve an important actual governmental purpose.”

In practical terms, the courts look at the purpose of the law, why the law was needed, and whether it is precise and targeted to accomplish its intended purpose or broad, and sweeping. Imagine the different levels of scrutiny as strainers to rinse grain or rice. Strict scrutiny is like a fine strainer; few laws make it through. Rational basis is like a large strainer; lots of laws get through. Intermediate scrutiny is in between. But for each of these levels, the scales of justice do their work, and the courts balance the rights involved, the purpose of the law, and the precision of the law to accomplish its purpose.

“Strict Scrutiny” and the Right to Free Exercise of Religion

Traditionally, the right to free exercise invoked strict scrutiny, at least until 1990. The strict scrutiny standard was reiterated this summer in Mahmoud v. Taylor, where the Court also narrowed the application of Employment Div. v. Smith,² the 1990 case that had applied a lower standard of scrutiny. Moreover, given the serious ramifications of requiring all children in public schools to receive these vaccines, strict scrutiny would appear to be the appropriate standard to apply.

In other words, our current Supreme Court may very well follow this trajectory and apply strict scrutiny to laws prohibiting religious vaccine exemptions. If so, the decision will turn on the strict scrutiny analysis: whether the state law prohibiting religious vaccine exemptions is narrowly tailored to achieve a compelling state interest. And that question is fact-specific; it may even involve a deep dive into the vaccine being mandated, and the research supporting it.

The 1905 Smallpox Case

The courts’ analysis may also include the factors considered in Jacobson v. Massachusetts,³ a 1905 Supreme Court decision regarding the state’s smallpox vaccine mandate, which was not based on the Jacobson’s First Amendment right to free exercise of religion, and was decided at a time when the federal courts were less involved in state actions.⁴ Nonetheless, as part of the due process analysis, the Court in Jacobson analyzed: the “necessity of the case” and whether the state was going “beyond what was reasonably required for the safety of the public,” whether the vaccine mandate was exercised in “an arbitrary and unreasonable manner,” whether it was “reasonably required for the safety of the public,” “whether there was a reasonable relationship between the health risk and the vaccine,” whether it was “arbitrary and oppressive,” and whether the vaccine itself posed a health risk to the subjects.”

In the end, Massachusetts’ vaccine mandate was upheld, yet in a very different case, one that did not involve religion, and at a very different time, before strict scrutiny was applied to religion cases. Today, the Jacobson factors are still relevant, but much has changed since 1905.

Many of the 50 State Constitutions Protect Religion and Matters of “Conscience”

In addition to the Supreme Court’s protection of religious freedom using strict scrutiny, many people are discovering their state constitutional rights, which vary from state to state and are enumerated in their state constitution’s “bill of rights” or “declaration of rights.” Many state constitutions protect matters of “conscience” in place of, or in addition to, the right to free exercise of religion.⁵ Likewise, people are discovering that their states have “Religious Freedom Restoration Acts,” state constitutional amendments, or state court decisions, all of which require strict scrutiny in cases involving the free exercise of religion.

Yet whether vaccine mandate cases are brought under our federal or state constitutions, the analysis will likely depend on the same strict scrutiny analysis, while also considering the factors raised in Jacobson v. Massachusetts. How that analysis will be applied to the facts of the case is for the courts to decide. Of course, the caveat is that nothing will be decided about these laws prohibiting religious vaccine exemptions unless and until someone asserts their constitutional right to free exercise of religion and brings the issue before the courts.

The Irony of the AAPs Announcement

The irony of the American Academy of Pediatrics’ announcement is that it may be undermining its own efforts to have more children vaccinated. Its leaders may want to read the room, or more specifically, the courtroom. A free public education is a valuable public benefit, and the government “cannot condition the availability of the benefit” on surrendering one’s right to free exercise. See Mahmoud v Taylor, citing Trinity Lutheran Church of Columbia, Inc. v. Comer.⁷ Moreover, abridging religious freedom is no small matter, and strict scrutiny requires a “compelling state interest,” known in southern vernacular as a damn good reason!

This raises the question, does the government have a compelling interest in requiring each vaccine for all public school students in the state? Do all illnesses targeted by vaccines pose a threat to public safety? What is the severity and transmissibility of the illnesses the vaccines are intended to prevent? Do the vaccines have side effects and health risks? If religious exemptions are prohibited and the laws are challenged, each state’s robust list of recommended vaccines may dwindle to one or two vaccines that can pass constitutional muster.

That may or may not be a good thing, but the American Association of Pediatrics may want to rethink the potential outcomes.

In the end, we should all remember that our nation is grounded on our religious liberty; in fact, the right to free exercise of religion is the very first right enunciated in our Bill of Rights. Perhaps, we should just let freedom ring.

Click HERE if you are interested in getting involved with protecting 1st Amendment Rights or:

Home | Double Umbrella Publications

________________________________

1. Mahmoud v. Taylor, 606 U.S. ___ (June 27, 2025).

² Employment Div. v. Smith, 494 U.S. 872 (1990).

³ Jacobson v. Massachusetts, 197 U.S. 11 (1905).

⁴ Cantwell v. Connecticut, 310 U.S. 296 (1940) (applying the incorporation doctrine).

⁵ See State Constitutions: AZ – Article II, § 12; AR: Article II, §§ 24-25; CA: Article I, § 4; CO: Article II, § 4; DE: Article I, §§ 1-2; ID: Article I, § 4; IL: Article I, § 3; IN: Article I, 2-8; KS: Article I, § 7; KY: Article I, § 1; ME: Article I, § 3; MI: Article I, §4; MN: Article I, §§ 16-17; MO: Article I, § 5; NE: Article I, § 4; NV: Article I, § 4; NH: Part First, § 5; NM: Article II, § 11; NY: Article I, § 3; NC: Article I, § 13; ND: Article I, § 3; OH: Article I, § 7; OR: Article I, §§ 2-7; PA: Article I, §§ 3-4; RI: Article I, § 3; SD: Article VI, § 3; TN: Article I, §§ 3-4; TX: Article , §§ 4-7; UT: Article I, § 4; VT: Ch. I, § 3; VA: Article I, § 16; WA: Article I, § 11; WI: Article I, § 18;WY: Article I, §§ 18-19.

⁶ Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017).

Disclaimer: This article is for educational purposes only. No information contained in this article should be construed as legal advice, does not create an attorney-client relationship, nor is it intended to be a substitute for legal counsel on any subject matter. Readers are encouraged to contact an attorney in their jurisdiction with any questions.

Kelly Himes Brolly is an attorney, author, consultant, and the Managing Member of Double Umbrella Publications, LLC, d/b/a Double Umbrella Consulting. For more information on constitutional rights in layman’s terms, see Part II, Federal and State Constitutional Rights, in Kelly’s book, “Laws, Rules, and Rights: A Guide to Protecting Children in Public Schools,” Double Umbrella Publications, LLC (2023). To order Kelly’s book on Amazon, go here. To hear Kelly’s podcast on ThinQ Media titled “The Informed Parent,” go here. To learn more about parental rights and public schools in all 50 states, go here or to:

www.doubleumbrellapublications.com