No. 15-1977

IN THE

November Term, 2015

GERALD BLACK, et. al.,

Petitioners,

v.

JAMES WALSH and CINDY WALSH,

Respondents.

On Writ of Certiorari to the

Court of Appeals for the Twelfth Circuit

BRIEF FOR RESPONDENTS

Attorneys for Respondent

Team 2416

ii

QUESTIONS PRESENTED

(1) Whether Pacifica Health & Safety Code § 124.1 violates the Establishment

Clause of the First Amendment.

(2) Whether the Due Process Clause of the Fourteenth Amendment is violated when

a public school forces select children to watch a public-health documentary it

reasonably knows will contravene the wishes of parents.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

OPINION BELOW ......................................................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 1

STATEMENT OF THE CASE ....................................................................................... 1

SUMMARY OF ARGUMENT ....................................................................................... 5

ARGUMENT .................................................................................................................. 8

I. STANDARD OF REVIEW. .................................................................................. 8

II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT PACIFICA’S

HEALTH & SAFETY CODE § 124.1 VIOLATES THE ESTABLISHMENT

CLAUSE OF THE FIRST AMENDMENT. ............................................................... 9

A. Pacifica’s Amended Health Code Fails the Court’s Establishment Clause

Test in Lemon. ....................................................................................................... 10

1. Pacifica’s Amended Health Code Fails the Effects Prong of the Lemon

Test. .................................................................................................................... 11

2. Pacifica’s Amended Health Code Fails the Entanglement Prong of the

Lemon test. ......................................................................................................... 15

B. Pacifica’s Amended Health Code is an Unconstitutional State

Endorsement of Religion. ...................................................................................... 19

C. Pacifica’s Amended Health Code is Not a Permissible State

Accommodation of Religion ................................................................................... 21

D. Pacifica’s Amended Health Code Impermissibly Coerces Nonreligious

Objectors to Participate in Religious Exercise. .................................................... 25

iv

III. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT THE

RESPONDENTS’ DUE PROCESS RIGHT TO REAR THEIR CHILDREN WAS

VIOLATED. .............................................................................................................. 26

A. The Violation of the Right to the Care, Custody, and Control of the

Respondents’ Children by a Public School Should be Subject to Heightened

Scrutiny. ................................................................................................................ 26

1. Respondents’ rights as parents in the care, custody, and control of their

children is a fundamental liberty interest because it is deeply rooted in our

nation’s history and is implicit in the concept of ordered liberty. ................... 27

B. The School District’s Violation of Respondents’ Fundamental Liberty

Interests as Parents Must Be Subject to Intermediate Scrutiny. ....................... 31

C. Petitioners Fail the Intermediate Scrutiny Test and Have Violated

Respondents’ Fundamental Right to the Care, Custody, and Control of Their

Children by Forcing the Walsh Children to Watch the Vaccination Video. ....... 34

1. The state interests pursued by the School District in application are not

important government interests. ...................................................................... 35

2. The School District’s showing of the Vaccination Video is not substantially

related to their alleged interest in furthering health awareness. ................... 38

CONCLUSION ............................................................................................................. 40

APPENDIX A ............................................................................................................. A-1

APPENDIX B ............................................................................................................. B-1

v

TABLE OF AUTHORITIES

U.S. Supreme Court Cases

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) .. 21, 23, 24

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) ....................................... 37

City of Cleburn, Tex. v. Cleburne Living Ctr., 471 U.S. 432 (1985) ........................... 32

Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S.

573 (1989) ............................................................................................................ 15, 19

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) .................................................................................................. 22

Cutter v. Wilkinson, 544 U.S. 709 (2005) ........................................................ 21, 22, 24

Edwards v. Aguillard, 482 U.S. 578 (1987) .......................................................... 36, 37

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) ..................... 11, 12, 20, 21, 23

Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947) .............................................. 9

Gillette v. United States, 401 U.S. 437 (1971) ...................................................... 17, 18

Ginsberg v. New York, 390 U.S. 629 (1968) ................................................................ 37

Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................ 30

Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987) .................. 22

Kramer v. Union Free Sch. Dist. 15, 395 U.S. 621 (1969) .......................................... 31

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) .................................. 11, 12, 13, 14

Lee v. Weisman, 505 U.S. 577, 587 (1992) ............................................................ 25, 36

Lemon v. Kurtzman, 403 U.S. 602 (1971) ................................................. 10, 11, 15, 17

Lynch v. Donnelly, 465 U.S. 668 (1984) ................................................................ 10, 19

Meyer v. Nebraska, 262 U.S. 390 (1923). .................................................... 7, 27, 30, 38

Moore v. City of East Cleveland, 431 U.S. 494 (1977) .................................... 28, 32, 33

vi

Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510

(1925) .................................................................................................. 7, 27, 30, 35, 38

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ................................... 30

Prince v. Massachusetts, 321 U.S. 158 (1944) ............................................................. 30

Roe v. Wade, 410 U.S. 113 (1973) ................................................................................ 31

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995) .. 11, 13, 14

Salve Regina College v. Russell, 499 U.S. 225 (1991) .................................................. 8

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)........................................ 19, 25

Santosky v. Kramer, 455 U.S. 745 (1982) ............................................................. 29, 33

Scott v. Harris, 550 U.S. 372 (2007). ............................................................................. 9

Troxel v. Granville, 530 U.S. 57 (2000) ............................................................. 7, 28, 33

United States v. Carolene Prod. 304 U.S. 144 (1938) ................................................. 35

United States v. Seeger, 380 U.S. 163 (1965) .................................................. 15, 16, 18

United States v. Virginia, 518 U.S. 515 (1996) ..................................................... 32, 35

Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970) ........................... 11, 17

Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................. 26, 27, 31

Welsh v. United States, 398 U.S. 333 (1970) ....................................... 14, 15, 16, 17, 18

Wisconsin v. Yoder, 406 U.S. 205 (1972) ..................................................... 7, 35, 37, 38

U.S. Court of Appeals Cases

Fields v. Palmdale School Dist., 427 F.3d 1197 (9th Cir. 2005) ................................ 39

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) ....................................................... 36, 39

Constitutional Provisions

U.S. Const. amend. XIV ............................................................................................... 26

..........................................................................................................................................

1

OPINION BELOW

The unreported opinion of the United States Court of Appeals for the Twelfth

Circuit appears on pages 9-15 of the record. The unreported opinion of the United

States District Court of Pacifica appears on pages 1-8 of the record.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The constitutional provisions at issue are the Establishment Clause of the

First Amendment, located at Appendix A, and the Due Process Clause of the

Fourteenth Amendment, located at Appendix B.

STATEMENT OF THE CASE

This case involves a dispute over whether a state’s change to the Health and

Safety Code, which eliminated a personal belief exemption to mandatory

immunization of school children, violates the Establishment Clause, and whether a

public school’s practice of forcing only unimmunized children to view documentaries

about vaccines violates the parent’s rights protected by the Due Process Clause.

West Beverly Elementary School

The West Beverly Elementary School is a public primary school in the city of

West Beverly Heights, Pacifica. R. at 1. As per state law, West Beverly Elementary

School is required to mandate certain immunizations before children are permitted

to enroll in the school. R. at 2. Twins Brenda Walsh and Brandon Walsh, aged 10,

will enter the fourth grade at the public school in fall of 2015. R. at 1. Their

2

parents, James and Cindy Walsh, (the “Respondents”) have long maintained

personal beliefs against immunizations. R. at 3.

The Vaccination Exemption

For years, the State of Pacifica has generally required all children enrolled in

school to undergo a series of vaccinations as a condition of attendance. R. at 1.

However, under Pacifica’s Health & Safety Code § 124, the state permitted

exemptions for medical reasons, religious reasons, or personal beliefs that are

opposed to immunizations. R. at 2. This “relatively generous exemption policy”

meant that burdens for securing an exemption were “minimal”. R. at 10.

After California’s recent outbreak of measles, one of the diseases preventable

by vaccination, much blame was placed on permissive exemption policies like

Pacifica’s. R. at 2. Indeed, the American Medical Association warned that states

should tighten exemptions in order to prevent further outbreaks, and it

recommended that states permit exemptions only for medical reasons. R. at 10.

In a reaction to California’s measles outbreak, R. at 2, Pacifica’s legislature

adopted a radically different exemption policy. R. at 10. The new policy, Pacifica’s

Health & Safety Code § 124.1, completely eliminates exemptions for nonreligious

people, except those who seek exemption for medical reasons. R. at 10. Religious

people, on the other hand, may still receive exemptions under the Code -- but they

may do so only if they qualify under the Code’s newly-adopted test of religious

beliefs. R. at 10. The Code in effect directs officers of the state to question the

content of a person’s religious beliefs to determine whether those beliefs are

3

genuinely religious under the statute. Pacifica determined that religious people are

all those and only those who believe in duties “superior to those arising from human

relations.” R. at 10. The statute expressly excludes those whose beliefs are better

described as “political, sociological, or philosophical views or merely a personal

moral code.” R. at 10.

The lead sponsor of the amendment to the Code explained why the law

excludes nonreligious people from obtaining an exemption: “[W]e value . . . religious

freedom in our state. No one in government can tell a citizen that his or her

understanding of God’s commands is in error.” R. at 3.

Believing that the amended statute is unconstitutional under the

Establishment Clause, the Walshes brought this action, seeking to prevent the

government from implementing the new statute.

The Vaccination Video

Pacifica requires students to be immunized before enrolling into a public

school. R. at 2. After the amendment to the Health and Safety Code, John Smith,

the Pacifica Superintendent, allowed school districts in the state to show The Truth

About Vaccines (the “Vaccination Video”), an alleged educational documentary. R.

at 3. The Vaccination Video targets elementary school children and combats what it

believes to be misperceptions about vaccines. R. at 3. The video features children of

“misinformed” parents, and shows how the children are able to teach their parents

“the error of their ways.” R. at 3. At the conclusion of the documentary, the

4

Vaccination Video urges children watching to take their newfound knowledge about

the benefits of vaccinations and bring it back to their family and friends. R. at 3.

Yvonne Teasley, the principle of West Beverly Elementary School, instituted

a new health protocol at West Beverly Elementary School, which prohibited

unvaccinated children from participating in school trips. R. at 3. While the

vaccinated children are participating in off-campus field trips, the segregated

children remaining participate in on-campus, indoor activities. R. at 3. Watching

the Vaccination Video is one of the indoor activities that Principle Teasley shows to

the unvaccinated children during the class’s off-campus field trips. R. at 3. In

September 2014, while the rest of the classroom visited the local petting zoo, the

Walsh children, without prior notice to their parents, were told to watch the

documentary. R. at 3.

Mr. and Mrs. Walsh have repeatedly used the personal-belief exemption from

the original Health and Safety Code. R. at 3. The Walshes have continuously kept

their children, Brandon and Brenda, involved in their decision to not vaccinate. R.

at 4. After watching the Vaccination Video during a school trip that the Walsh

children were not privy to, Brenda and Brandon questioned their parents’ authority

to not vaccinate, and directed a lack of respect to the family. R. at 4.

Procedural History

Respondents filed a complaint in the United States District Court for the

District of Pacifica. R. at 1. Respondents brought two claims. In the first, they

alleged that the State of Pacifica’s Health and Safety Code violates the

5

Establishment Clause of the First Amendment, and they sought declaratory and

injunctive relief to prevent the state from applying the statute on their school-aged

children. R. at 1. In the second, Respondents alleged that the West Beverly School

District’s practice of forcing unimmunized children to view documentary films about

vaccination is a violation of substantive Due Process under the Fourteenth

Amendment. R. at 1. Parties moved for summary judgment, R. at 1., and on

November 22, 2014, the District Court granted Respondents’ motion on the Due

Process claim, and Petitioners’ motion on the Establishment claim. R. at 6. On

July 3, 2015, the Twelfth Circuit reversed the District Court’s grant of summary

judgment to Petitioners on the Establishment Clause claim, and affirmed the grant

of summary judgment to Respondents on the Due Process Clause claim. R. at 9.

Petitioners sought review on certiorari, which this court granted on July 20, 2015.

R. at 16. This Court limited review to two issues: (1) whether Pacifica Health &

Safety Code § 124.1 violates the Establishment Clause of the First Amendment; and

(2) whether the Due Process Clause of the Fourteenth Amendment is violated when

a public school forces select children to watch a public-health documentary it

reasonably knows will contravene the wishes of parents. R. at 16.

SUMMARY OF ARGUMENT

I. Pacifica Health & Safety Code § 124.1 is an Unconstitutional

Establishment of Religion.

This Court has used a number of separate tests to determine whether the

government’s action constitutes an impermissible establishment of religion under

the First Amendment. The Court’s test in Lemon v. Kurtzman will invalidate any

6

federal or state action that lacks a secular purpose, advances religion as its primary

effect, or excessively entangles government and religion. Pacifica’s amended Health

& Safety Code clearly violates the second and third parts of this test. The Code has

the primary effect of advancing religion, because the benefits it casts on religion are

not merely the incidental effects of a general program of secular aims, and because

the Code apparently forsakes the interests of those ineligible for an exemption. The

Code also excessively entangles government and religion: it adopts as official state

policy a content-based religious test, one that requires the government to search the

hearts and minds of religious people. This Court has sometimes applied an

endorsement test to determine whether the government’s action is consistent with

the Establishment Clause. Pacifica’s Code fails the endorsement test, largely for

the same reasons that it advances religion in its primary effect. Pacifica cannot

rescue the statute by labeling it a harmless, neutral-minded accommodation for a

religious group, because the interests of the policy’s beneficiaries are assigned much

greater weight than the interests of nonbeneficiaries, who have no choice but to

absorb the risks of living with an undervaccinated population. For these reasons,

Pacifica’s amended exemption policy is an unconstitutional establishment of

religion.

II. The Vaccination Video Impedes on the Walshes’ Fundamental Due

Process Right to the “Care, Custody, and Control” of Their Children.

The Due Process Clause of the Fourteenth Amendment secures the rights of

parents to the “care, custody, and control” of their children. Troxel v. Granville, 530

7

U.S. 57, 65 (2000). The right to rear and direct the upbringing of children, even in

the expansive realm of education, has been a staple in our Due Process

jurisprudence since Meyer v. Nebraska, where the Supreme Court held that the

Nebraska legislature had materially interfered with “the calling of modern

language teachers,” and with the “power of parents to control the education of [their

children]” when it had prohibited the teaching of foreign languages. 262 U.S. 390,

401 (1923). The fundamental theory of liberty here rests on the notion that the

child is “not a mere creature of the statute.” Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary, 268 U.S. 510, 536 (1925). While there is also no

doubt that the state has a right and a responsibility to educate and impose

regulations, subject to judicial scrutiny, for the control and duration of the

education of children, the state’s interest in education “is not totally free from a

balancing process when it impinges on fundamental rights, such as those

specifically protected by [the Constitution] and the traditional interests of parents.”

Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972).

In this case, Respondents maintain a fundamental due process right, as

parents, to the care and custody of their children, even in a public school setting.

Any violation of this right by the West Beverly School District must, therefore, be

subject to heightened judicial scrutiny. By secluding Respondents’ children and

forcing them to watch an opinionated vaccination video, the School District has

violated the Respondents’ rights under the Due Process Clause. Therefore, this

Court should affirm the holding of the Twelfth Circuit Court of Appeals and find the

8

School District to be in violation of the Respondents Due Process right to rear their

children.

ARGUMENT

Respondents claim that Pacifica’s Health & Safety Code § 124.1 is an

unconstitutional violation of the Establishment Clause of the First Amendment.

Respondents further claim that the School District violated their parental rights

under the Due Process Clause of the Fourteenth Amendment by exposing their

children to a public-health documentary that it reasonably knew would contravene

their wishes. Respondents must prevail on the Establishment Claim, because the

amended Health Code effectively sponsors and endorses religion, subordinating the

interests of the general population to the interests of a particular religious group.

Further, Respondents must prevail on the Due Process claim, because the School

District violated the Walshes’ right to the rear their children by forcing the

segregated children to watch a persuasive video on the benefits of vaccination.

I. STANDARD OF REVIEW.

This Court is reviewing the decision of the United States Court of Appeals for

the Twelfth Circuit, which granted summary judgment in favor of the Respondents

on the Establishment Clause claim, as well as the Due Process Clause claim. (R. at

9.) The appropriate standard for view for this Court is de novo. Salve Regina

College v. Russell, 499 U.S. 225, 231-32 (1991). Summary judgment is appropriate

only where there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The facts must be

9

viewed in the light most favorable to the non-moving party. Scott v. Harris, 550

U.S. 372, 380 (2007).

II. THE TWELFTH CIRCUIT CORRECTLY HELD THAT PACIFICA’S

HEALTH & SAFETY CODE § 124.1 VIOLATES THE ESTABLISHMENT

CLAUSE OF THE FIRST AMENDMENT.

The Twelfth Circuit correctly held that Pacifica’s Health & Safety Code §

124.1 violates the Establishment Clause of the First Amendment, made applicable

to the states by the Fourteenth Amendment. Everson v. Bd. of Ed. of Ewing Twp.,

330 U.S. 1 (1947). Under the longstanding test adopted in Lemon v. Kurtzman, the

Establishment Clause absolutely forbids the kinds of state sponsorship of religion at

work in Pacifica’s amended Code. The Code violates the Lemon test in two ways:

first, the Code advances religion as its principal and primary effect; second, the

Code sponsors a religious belief test that thoroughly entangles the State of Pacifica

in the affairs of religion. If the Court relies instead on an endorsement test to

determine the constitutionality of the Code, it will find that the Code unmistakably

conveys a message of the state’s endorsement of religion. The District Court

believed that the law could be saved as a mere accommodation of a religious group,

but a closer analysis does not permit that conclusion, because Code operates to

advance the interests of one religious group at severe costs to the rest of the

population. Finally, the Code amounts to a kind of government coercion -- sincere,

nonreligious objectors to vaccinations, such as the Walshes, will have no choice but

to feign religious belief to gain the exemption. For these reasons, the Twelfth

Circuit’s judgment on the Walshes’ Establishment claim should be affirmed.

10

A. Pacifica’s Amended Health Code Fails the Court’s

Establishment Clause Test in Lemon.

Pacifica’s amendment to its Health & Safety Code, which eliminates the

personal belief exemption, does not survive the constitutional scrutiny of the Court’s

Establishment Clause test in Lemon v. Kurtzman, because its primary effect is the

sure and certain advancement of religion, and because it sponsors a religious belief

test that entangles the state and religion. In Lemon, the Court adopted a three-part

test to determine whether the government’s action is permitted under the

Establishment Clause: the act must have a secular purpose; its principal or primary

effect must neither advance nor inhibit religion; and it must not create excessive

entanglement of government and religion. Lemon v. Kurtzman, 403 U.S. 602

(1971). Pacifica’s amendment survives the highly permissive first prong of the

Lemon test, because even if the amendment’s purpose is primarily the advancement

of religion, the amendment satisfies the first prong if any credible secular purpose

can be supplied. Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (“The Court has

invalidated legislation or governmental action on the ground that a secular purpose

was lacking, but only when it has concluded there was no question that the statute

or activity was motivated wholly by religious considerations.”). However, the

amendment clearly fails the second and third prongs of the Lemon test, those

concerning effects and entanglement.

11

1. Pacifica’s Amended Health Code Fails the Effects Prong

of the Lemon Test.

Pacifica’s Health & Safety Code § 124.1 confers a significant and exclusive

benefit on religious people because of their religious beliefs, and not merely as the

incidental or collateral effect of a general program. As such, the law clearly fails the

effects prong of the Lemon test. For a legislative act to survive the second prong of

the Lemon test, “its principal or primary effect must be one that neither advances

nor inhibits religion.” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). When

government action advances religion, its constitutionality under the effects prong

turns on whether the advancement is a primary effect or an incidental effect of the

action. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819

(1995); see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Larkin v.

Grendel's Den, Inc., 459 U.S. 116 (1982); Walz v. Tax Comm'n of City of New York,

397 U.S. 664 (1970).

Government action that benefits religious groups is permissible under the

second prong of the Lemon test when those benefits are merely the incidental effects

of a secular program. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515

U.S. 819 (1995); see also Walz v. Tax Comm'n of City of New York, 397 U.S. 664

(1970). In Walz, decided one year before Lemon, the Court sustained a New York

state law that exempted certain institutions from property taxation, including

houses of religious worship, hospitals, libraries, and playgrounds. The Court held

that the benefits to religious groups, though significant, are the permissible

incidental effects of the state’s general program to lend support to “beneficial and

12

stabilizing influences in community life.” Walz, 397 U.S. at 673. More recently, in

Rosenberger, where a public university provided printing services to student groups,

including sectarian student groups, the Court found no Establishment Clause

violation, because “[a]ny benefit to religion is incidental to the government's

provision of secular services for secular purposes on a religion-neutral basis.”

Rosenberger, 515 U.S. at 843-44 (emphasis added).

But government action whose primary effect is to advance religion is

impermissible. Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Larkin v.

Grendel's Den, Inc., 459 U.S. 116 (1982). The analysis turns again on the question

of whether a reasonable observer could understand the religion-advancing effect as

merely the collateral effect of a policy with a religion-neutral objective. See Caldor,

472 U.S. 703; see also Larkin, 459 U.S. 116. When a legislative act confers benefits

on an explicitly religious basis, as Pacifica’s Health & Safety Code § 124.1 does, the

Court has considered whether the interests of different groups are weighed equally,

cf. Caldor, 472 U.S. 703, and whether a suitable, non-discriminating alternative

policy could have affected the same neutral governmental objective, cf. Larkin, 459

U.S. 116.

When a legislative act confers benefits to religious groups on an explicitly

religious basis, the act unconstitutionally advances religious interests, unless the

interests of nonbeneficiaries are weighed equally. Cf. Caldor, 472 U.S. 703. In

Caldor, a Connecticut law forbad employers to terminate Sabbath-observing

employees who demand not to work on the day they designate as their Sabbath. Id.

13

at 707. The law permitted only those who designate a Sabbath to claim the

entitlement, thus shifting the burdens of the accommodation to employers and non-

observing employees. Id. Invalidating the law, the Court held that the statute’s

“unyielding weighting in favor of Sabbath observers over all other interests” went

“beyond having an incidental or remote effect of advancing religion.” Caldor, 472

U.S. at 710.

Additionally, an act of this kind unconstitutionally advances religious

interests when a suitable, non-discriminating alternative policy could have affected

the same neutral governmental objective, cf. Larkin, 459 U.S. 116. In Larkin, a

Massachusetts law permitted churches to veto the liquor licenses of any

establishments within a certain distance of their church buildings. Id. at 117. The

Court found that the law impermissibly advanced religion in its primary effect. Id.

at 126. Though the legislature had a valid secular purpose in protecting “spiritual,

cultural, and education centers from the ‘hurly-burly’ associated with liquor

outlets,” that purpose could be “readily accomplished by other means.” Id. at 124.

Here the conclusion cannot be avoided that the primary effect of Pacifica’s

Health & Safety Code § 124.1 is the advancement of religion, because simply put,

the law is written with only one group’s interests in mind -- the religious group that

objects to vaccination. Unlike the government’s policies in Walz and Rosenberger,

where general programs incidentally conferred benefits on religious groups,

Pacifica’s amended Code targets the religious objector qua religious, despite the

plain and obvious truth that many nonreligious objectors are in every relevant way

14

similarly-situated to the religious objectors. As Justice Harlan wrote in the context

of selective conscientious objection, “[c]ommon experience teaches that among

‘religious’ individuals some are weak and others strong adherents to tenets and this

is no less true of individuals whose lives are guided by personal ethical

considerations.” Welsh v. United States, 398 U.S. 333, 358-59 (1970) (Harlan, J.,

concurring in the judgment).

Pacifica addressed concerns over its permissive exemption policy not by

adopting a sensible, even-handed amendment, but by categorically dismissing all

objections that are not related to “duties superior to those arising from human

relations.” R. at 8. Like the state legislature in Larkin, Pacifica’s legislature could

have adopted an alternative, non-discriminating policy to affect the same neutral

government objective. Such a policy would have aimed both to reduce the number

of children receiving exemptions and to accommodate those with sincere, deeply-

held, significant and personal beliefs against vaccination, who are gravely worried

about consequences to their children. A neutral policy of that kind would have

resembled the government’s policies in Walz and Rosenberger, because the benefits

conferred on religious objectors would have been incidental to the program of

exempting similarly-situated people with objections to vaccination.

Pacifica’s Health Code resembles the unconstitutional statute at issue in

Caldor, because the amended Health Code utterly forsakes the interests of

nonbeneficiaries. Not only are nonreligious objectors cast aside, but also

nonbeneficiaries generally absorb the risks of an undervaccinated population. This

15

is the intolerable result of a legislature that values the freedom of the religious over

the freedom of the rest of the population. Because its primary effect is the

advancement of religious interests, we must conclude that Pacifica’s Health &

Safety Code § 124.1 clearly fails the effects prong of the Lemon test.

2. Pacifica’s Amended Health Code Fails the Entanglement

Prong of the Lemon test.

Pacifica’s amendment, which newly adopts a narrow definition of “religious

belief,” is an unlawful entanglement of government and religion, because it

entangles government in essentially theological or religious debates, and invites

agents of the government to scrutinize the content of religious beliefs as opposed to

the function of those beliefs in the lives of adherents. The Establishment Clause,

“at the very least, prohibits government from appearing to take a position on

questions of religious belief . . . .” Cnty. of Allegheny v. Am. Civil Liberties Union

Greater Pittsburgh Chapter, 492 U.S. 573, 594 (1989). To determine whether a

belief qualifies as religious, the proper inquiry is never a subjective analysis of the

content of religious beliefs, but rather an objective determination of the role or

function of the beliefs in the lives of their adherents. Cf. Welsh v. United States, 398

U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). When a policy

requires the government to inspect the content of beliefs in order to draw a line

between those that count as secular and those that count as religious, that policy

fails the entanglement prong of the Lemon test. Cf. Lemon v. Kurtzman, 403 U.S.

602 (1971).

16

Any serious attempt by the government to adopt a useful, content-based

definition of religion is bound to run afoul of the Establishment Clause, because

such a definition will likely be underinclusive. Welsh, 398 U.S. 333; Seeger, 380

U.S. 163. In Seeger, the Court considered the question of whether Mr. Daniel

Seeger’s belief against participating in war qualified as a religious belief under the

meaning of the Universal Military Training and Service Act. The Act defined

religious belief as “an individual's belief in a relation to a Supreme Being involving

duties superior to those arising from any human relation, but (not including)

essentially political, sociological, or philosophical views or a merely personal moral

code.” Seeger, 380 U.S. at 165. Mr. Seeger described his own belief as a “devotion to

goodness and virtue for their own sakes, and a religious faith in a purely ethical

creed.” Welsh, 398 U.S. at 338.

In its attempt to interpret the meaning of the Service Act, the Seeger Court

examined a variety of religious traditions, concluding that the diversity and broad

spectrum of bona fide religious beliefs reveal “the difficulties inherent in placing too

narrow a construction on the provisions of [the Act].” Seeger, 380 U.S. at 183.

Rather than declare the Service Act unconstitutional under the First Amendment,

the Seeger Court applied the rule of constitutional avoidance, interpreting the

language of the Service Act broadly to include any belief that is “sincere and

meaningful” and “occupies a place in the life of its possessor parallel to that filled by

the orthodox belief in God of one who clearly qualifies for the exemption.” Seeger,

380 U.S. at 166. The inquiry into religious belief became one about function. The

17

question was not what Mr. Seeger believed, but whether the “beliefs function as a

religion in [Seeger’s] life.” Welsh, 398 U.S. at 340 (emphasis added). The functional

definition, as opposed to a content-based definition, “avoids imputing to Congress an

intent to classify different religious beliefs, exempting some and excluding others.”

Seeger, 380 U.S. at 176. The functional definition also permitted the Court to

conclude that Mr. Seeger’s belief qualified him for an exemption under the statute.

Even if Congress could draw the lines between religious and secular, the

government’s very scrutiny and sorting of personal beliefs is itself violative of the

entanglement prong under Lemon. Indeed, in Lemon itself, the Court invalidated a

state practice of lending government support to secular functions of parochial

schools, in part because the government’s program “required the government to

examine the school’s records to determine how much of the total expenditures is

attributable to secular education and how much to religious activity.” Lemon, 403

U.S. at 620. The Court applied the entanglement prong, finding that the “state

inspection and evaluation of the religious content . . . is fraught with the sort of

entanglement that the Constitution forbids.” Id. The same rule applies when

government attempts to examine hearts and minds: government may not attempt

by a content-based test to determine the character of a persons’ beliefs and

affiliations without “entang[ling] [itself] in difficult classifications of what is or is

not religious.” Gillette v. United States, 401 U.S. 437, 457 (1971) (quoting Walz v.

Tax Commission, 397 U.S. 664, 698-99 (1970) (Harlan, J.)).

18

Pacifica’s amended Health Code is a content-based test of religion. The Code

permits exemptions only for those whose beliefs qualify as “sincere religious belief.”

R. at 8. The statute defines a religious belief as “one that arises from an

individual’s belief in duties superior to those arising from human relations, but does

not include essentially political, sociological, or philosophical views or a merely

personal moral code.” R. at 8.

Pacifica’s definition of religious belief is deeply flawed. First, as in Seeger,

where the government attempted a content-based definition of religion, Pacifica’s

definition is vastly underinclusive. Indeed some of the religious beliefs examined by

the Court in Seeger, including Mr. Seeger’s own belief, would not qualify under the

narrow content-based test in Pacifica’s Health Code, for Mr. Seeger’s belief bore no

relationship whatsoever to duties superior to those that arise from human relations.

See Welsh, 398 U.S. at 338. Second, Pacifica’s amendment invites -- indeed, it

requires -- agents of the state to commence the kind of scrutiny and sorting of

personal beliefs that the Court expressly condemned in Lemon and Gillette. It is no

stretch to imagine administrators at West Beverly Elementary School calling

hearings to question the beliefs of parents and their children in Pacifica. Such a

result is intolerable under the Establishment Clause, for it plainly violates the

entanglement prong of the Lemon test.

19

B. Pacifica’s Amended Health Code is an Unconstitutional State

Endorsement of Religion.

Pacifica’s amendment to its Health & Safety Code also confers symbolic

benefits on religion generally, because it has the impermissible effect of conveying a

message of the state’s endorsement of religion. The Court often applies an

endorsement test to determine whether the government’s action is consistent with

the Establishment Clause. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000);

Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S.

573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984) (O’Connor, J., concurring). The

prohibition on endorsement means this: that with regard to religion, nonreligion, or

other religious status, the government may not convey a message either that a

status is favored or preferred, Cnty. of Allegheny, 492 U.S. at 593, or that some

people, because of their religious status, are “insiders, favored members of the

political community,” Lynch, 465 U.S. at 688 (O’Connor, J., concurring). The Court

considers “the context in which a reasonable observer evaluates whether a

challenged governmental practice conveys a message of endorsement,” Cnty. of

Allegheny, 492 U.S. at 630, as well as the history, Santa Fe, 530 U.S. at 308.

In a concurring opinion, Justice O’Connor applied the endorsement test in

Estate of Thornton v. Caldor, Inc., concluding that Connecticut’s statute, which

“single[d] out Sabbath observers for special and . . . absolute protection without

according similar accommodation to ethical and religious beliefs and practices of

other private employees,” indeed conveyed to the objective observer an endorsement

20

of a religious position. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 711 (1985)

(O’Connor, J., concurring).

Here the government of Pacifica confers an impermissible, symbolic benefit

on religion generally and on one religious group in particular. Pacifica dropped the

exemption for nonreligious reasons but retained the exemption for religious reasons,

conveying the message to an objective observer that nonreligious reasons are less

worthy of the state’s respect. The history of the amendment adds to the concern,

because the state deliberately targeted those who claimed a nonreligious objection.

R. at 2. Indeed, the amendment’s lead sponsor in the Senate strongly implied that

freedom of a “religious” nature is more worthy of government protection than

freedom of a nonreligious nature, when he explained that, “[W]e value religious

freedom in our state. No one in government can tell a citizen that his or her

understanding of God’s commands is in error.” R. at 3.

The amendment also unmistakably signals that the interests of a religious

group, those who have a religious belief opposed to vaccination, are more important

than the interests of the rest of the population. The amended Health Code is

exactly like statute at issue in Caldor. Pacifica, like Connecticut, weighed the

interests of one group “over all other interests,” Caldor, 472 U.S. at 710, including

the public health. Moreover, Pacifica denied to nonreligious objectors any

consideration for their relevantly-similar personal beliefs. As in Caldor, one group

has been “single[d] out . . . for special and . . . absolute protection without according

similar accommodation to ethical . . . beliefs and practices” of others. Caldor, 472

21

U.S. at 711 (O’Connor, J., concurring). There simply is no reasonable interpretation

of Pacifica’s amendment other than this: that Pacifica favors and prefers religion to

nonreligion, an unconstitutional endorsement under the Establishment Clause.

C. Pacifica’s Amended Health Code is Not a Permissible State

Accommodation of Religion

Pacifica’s amended exemption policy assigns greater importance to the

interests of a religious group than to the rest of the population, overburdening those

who are not eligible for exemptions. As such, the amendment crosses the line from

permissible state accommodation of religion to unconstitutional establishment.

The District Court concluded that, even though Pacifica’s amendment

expressly targets a religious group for benefits, the amendment can be rescued by

the Court’s longstanding exception for religious accommodations. R. at 4. Indeed

the government may grant accommodations to religious groups in order to lift the

“special burdens” that legitimate exercises of state power place on their practice.

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 705 (1994).

However, the District Court overlooked the constitutional limits of accommodations

under the Establishment Clause. When granting a religious accommodation, the

government must not categorically weight the interests of the beneficiaries of such

accommodations over nonbeneficiaries. Estate of Thornton v. Caldor, Inc., 472 U.S.

703, 710 (1985). An accommodation “must be measured so that it does not override

other significant interests.” Cutter v. Wilkinson, 544 U.S. 709, 722 (2005). An

accommodation goes too far when it becomes a kind of “fostering of religion.” Corp.

22

of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.

327, 335 (1987) (quoting Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S.

136, 145 (1987)).

The government may sponsor a religious accommodation only if the

accommodation relieves a special burden on a religious group and does so with due

regard to other important interests. See Cutter, 544 U.S. 709; see also Amos, 483

U.S. 327. In Cutter, the Court reviewed the RLUIPA, a congressional act that

requires prisons to grant some accommodations to the religious practices of

prisoners, such as certain appearance mandates of their religions. Cutter, 544 U.S.

at 713. Overlooking the exception for religious accommodations, the prison argued

that the Act was an impermissible establishment, because it gave “greater

protection to religious rights than to other constitutionally protected rights.”

Cutter, 544 U.S. at 718. Rejecting the prison’s understanding of Establishment

doctrine, the Court reaffirmed the longstanding exception for such accommodations,

arguing that the Act permissibly “alleviate[d] exceptional government-created

burdens on private religious exercise.” Id. at 720 (emphasis added). Crucially,

however, the Court in Cutter found that the RLUIPA could stand only because it

granted accommodations in “an appropriately balanced way,” with “particular

sensitivity” to other interests, including the security concerns of prisons. Id. at 722.

An accommodation becomes a kind of unconstitutional establishment when

the government clearly assigns a different weight to the interests of a group because

of that group’s religious status, or treats the interests and concerns of a group as

23

more worthy of governmental protection. See Kiryas Joel, 512 U.S. 687; see also

Caldor, 472 U.S. 703. In Kiryas Joel, the State of New York carved out a school

district to accommodate a conservative religious group’s worry that some of its

children would otherwise suffer “fear and trauma . . . in leaving their own

community and being with people whose ways were so different.” Kiryas Joel, 512

U.S. at 692. Invalidating the accommodation, the Court held that there was “no

assurance that the next similarly situated group seeking a school district of its own

will receive one,” raising the worry that New York’s accommodation may “prefer one

religious to another, or religion to irreligion.” Kiryas Joel, 512 U.S. at 703.

Likewise in Caldor, where the state of Connecticut required employers to permit

Sabbath-observers a Sabbath day of their choosing, the Court held that the state

inequitably shifted the burdens of Sabbath-observers to nonbeneficiaries of the

policy, impermissibly treating the interests and concerns of the Sabbath-observers

above those of the rest of the population. Caldor, 472 U.S. 703. Thus, when the

government gives a benefit to a religious group for the purpose of alleviating what

would otherwise be an exceptional government-created burden on that group, the

government acts within the bounds of the Establishment Clause only if it treats the

interests of the group as no more worthy of accommodation than the interests of

similarly-situated other groups, regardless of religious status.

Here we are led to the inescapable conclusion that Pacifica’s amended Health

Code is not a permissible accommodation but an unconstitutional establishment of

religion, for two reasons: (a) the burdens of Pacifica’s mandatory vaccination policy

24

are not special or exceptional burdens of the kind that permit exclusive

accommodation; and (b) the amended vaccination policy clearly assigns greater

importance to the interests of a religious group than to the public interest or the

interests of nonbeneficiaries, overburdening them with the costs of one group’s

religious practice.

Simply put, the religious objectors to vaccination face no more of a burden

than the nonreligious objectors. Many nonreligious objectors are similarly

positioned in every important way: they deeply and personally object to

vaccinations; they fear for the very lives of their children; and as a matter of

conscience they cannot permit their children to submit to vaccination. The

vaccination policy of Pacifica is decidedly unlike the accommodation in Cutter,

where prison policies had placed exceptional burdens that fell uniquely on certain

religious prisoners.

The amended vaccination policy virtually mirrors the problems that the

Court found in Kiryas Joel and Caldor, in that it treats similarly-situated groups

differently, suggests a preference for religion over irreligion, and assigns less

importance to the interests of nonbeneficiaries, to the point of exposing their

children to an undervaccinated population. Indeed, the Court of Appeals rightly

directs our attention to the American Medical Association’s finding that the

government “should only grant exemptions . . . for medical reasons.” R. at 10. Thus

Pacifica’s “accommodation” to religious objectors is in fact an establishment: it is not

a corrective measure to alleviate an exceptional government-created burden, but a

25

facially-discriminatory law meant to benefit one religious group at a severe cost to

the rest of the population.

D. Pacifica’s Amended Health Code Impermissibly Coerces

Nonreligious Objectors to Participate in Religious Exercise.

Because Pacifica’s Health & Safety Code § 124.1 will undoubtedly force the

most sincere, nonreligious objectors to feign religion in order to gain the vaccine

exemption, the Code is an impermissible kind of coercion under the Establishment

Clause. “The government may not coerce anyone to support or participate in

religion or its exercise.” Lee v. Weisman, 505 U.S. 577, 587 (1992). This Court has

defined coercion broadly to include even state-sponsored “subtle coercive pressures.”

Weisman, 505 U.S. at 588; see Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)

(finding that, despite the formally optional nature of participation, a public school’s

sanctioning of religious speech before sporting events amounted to a kind of

coercion, because students would feel social pressure to participate).

Pacifica’s amended Code applies a very direct kind of pressure to those who,

for nonreligious reasons, deeply and personally object to vaccinations, fearing for

the very lives of their children. Far greater than the pressure to participate in a

prayer before a football game, as in Santa Fe, Pacifica’s policy leaves some no choice

but to claim falsely an adherence to the favored religious position of the religious

objector. This amounts to an impermissible establishment of religion.

26

III. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT THE

RESPONDENTS’ DUE PROCESS RIGHT TO REAR THEIR CHILDREN

WAS VIOLATED.

The Twelfth Circuit affirmed the District Court’s decision and held that the

School District violated the Walshes’ right to rear their children, a fundamental

right provided to them by the Due Process of the Fourteenth Amendment. The

majority of the Court found that, by secluding them from the rest of the classroom,

the School District improperly communicated its desired message to the students.

While the Twelfth Circuit correctly identified that heightened scrutiny was

appropriate level for fundamental rights violations, case law suggests that the more

fitting test in this case is intermediate scrutiny. The School District fails to meet

the constitutional requirements of the intermediate scrutiny test because the school

action is not substantially related to an important government interest.

A. The Violation of the Right to the Care, Custody, and Control of

the Respondents’ Children by a Public School Should be

Subject to Heightened Scrutiny.

The Due Process Clause of the Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property without due process of law.”

U.S. Const. amend. XIV, § 1. This provision, under judicial expansion, has come to

encompass several substantive-due-process rights afforded to individuals. The Due

Process Clause affords the most stringent protection to those rights that are so

fundamental that they are “objectively, deeply rooted in our nation’s history and

tradition,” and “implicit in the concept of ordered liberty.” Washington v.

Glucksberg, 521 U.S. 702, 721 (1997).

27

Heightened scrutiny, specifically, intermediate scrutiny, is the appropriate

test to be applied in this case because the violation of parental care over their

children is the violation of a fundamental right that is deeply rooted in our nation’s

history and our notion of ordered liberty. Therefore, to remain fully consistent with

Fourteenth Amendment Due Process Clause jurisprudence, as well as to protect the

purposes of the Due Process Clause, this Court must hold that the School District’s

act of showing the Vaccination Video should be subject to heightened scrutiny.

1. Respondents’ rights as parents in the care, custody, and

control of their children is a fundamental liberty interest

because it is deeply rooted in our nation’s history and is

implicit in the concept of ordered liberty.

A fundamental liberty interest – subjecting the state to heightened scrutiny –

is one that is found to be a continuous staple in our history and jurisprudence.

Washington v. Glucksberg, 521 U.S. 702, 721 (noting that “our Nation’s history,

legal traditions, and practices thus provide the crucial guideposts for responsible

decision-making that direct and restrain the Due Process Clause”). Parents’

interest in the care of their children is one of the oldest of the liberty interests

recognized by this Court. Beginning with the Meyer-Pierce cases, the Court, in a

span of two years, recognized that there is a liberty interest protected by the

Fourteenth Amendment in parents being able to raise and control their children. Id.

at 762. In Meyer v. Nebraska, the Court struck down the Nebraska law forbidding

foreign language studies until after the eighth-grade, holding that the state

legislature attempted to unjustly interfere with academic opportunities and the

28

“power of parents to control the education of their own.” 262 U.S. 390, 401 (1923).

Similarly, the Pierce Court found the Compulsory Education Act, which forced

parents to send their children to public school, violated the Due Process Clause and

conflicted with the “right of parents to choose schools where their children will

receive appropriate […] training.” Pierce v. Soc’y of Sisters, 268 U.S. 510, 572. The

Meyer-Pierce decisions in 1923 and 1925, respectively, gave rise to the notion that

the formerly private relationship between parent and child was a protected

substantive due process interest that the state could not arbitrarily infringe on.

This Court has also repeatedly found that the nuclear family relationship

enjoys “enhanced protection” in its substantive liberties. Moore v. City of East

Cleveland, 431 U.S. 494, 502 (1977). In Moore v. City of East Cleveland, this Court

found that the Constitution protected the sanctity of the family because “the

institution of the family is deeply rooted in this Nation’s history and tradition; it is

through this family that we inculcate and pass down many of our most cherished

values, moral and cultural.” Id. at 504.

Most recently, this Court crystallized the substantive due process right to

raise children in Troxel v. Granville. In Troxel, the Court recognized that parents

maintain a fundamental right to make decisions concerning the care, custody, and

control of their children, and that this right is afforded heightened protection

against government interference. 530 U.S. 57, 65 (2000). Although the statute at

issue in Troxel involved the right to petition a superior court for visitation rights

whenever visitation was in the best interest of the child, Justice O’Connor, in her

29

majority decision, spoke more broadly of the fundamental nature of parenting and

the “right of parents to establish a home and bring up children.” 530 U.S. 57, 65.

The Court further held that its decision in Troxel is not defined “[in] the precise

scope of the parental due process right in the visitation context.” Id. at 74. In this

case, therefore, the parenting relationship between the Walsh children and their

parents is similarly protected from arbitrary government intervention.

Analogous to the heightened scrutiny afforded to parents in substantive due

process cases, procedural due process infractions also award parents the protective

shield of heightened scrutiny. In Santosky v. Kramer, a case involving the rights of

parents in permanent neglect cases, the Court held that to sever the parent-child

relationship, the state must be held to the higher, intermediate standard of “clear

and convincing evidence” to support a finding of permanent neglect on the part of

the parent; to hold the state to the lower standard of “fair preponderance of the

evidence” is to break away from the longstanding “historical recognition that

freedom of personal choice in matters of family life is a fundamental liberty interest

protected by the Fourteenth Amendment.” 455 U.S. 745, 753 (1982). Although this

case involved procedural due process – which is not at issue here – the Court was

resolute in finding that because of the traditionally private nature of parenting, a

state must be subject to a higher degree of certainty before it takes steps to

interfere in the parent-child relationship. Id. Similarly, in this case, the

fundamental liberty interest of the Walsh parents does not “evaporate simply

30

because they have not been [what the State considers] model parents.” Id. Their

interest remains fundamental and deeply rooted in our nation’s history.

Finally, the issue underlying the relationship between the Walshes and the

School District involves a type of right to privacy from the state: privacy within the

home, privacy between parent and child, and privacy from bodily intervention, all of

which this Court has found, time and time again, to be fundamental and implicit in

the concept of ordered liberty. Griswold v. Connecticut, 381 U.S. 479, 500 (1965).

The Meyer-Pierce cases are, in this way, distinct from the type of parental-control

case the Walshes are involved in; the former involve laws about the extent (and

limits) of the general public school curriculum, imposed equally on all students; the

latter, however, involves a deeper intrusion into the privacy of the Walsh family,

and intended imposition on the bodily integrity of the Walsh children. The

autonomy concerns in this case, freedom from vaccination and freedom for parental

control over these health matters, are central to the liberties protected by the

Fourteenth Amendment as “the private realm of family life which the state cannot

enter.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (noting that “at the heart of

liberty is the right to define one’s own concept of existence, of meaning, of the

universe, and of the mystery of human life.”). While there is no enumerated right to

privacy, the Supreme Court has established a line of reasoning that recognizes a

right of personal privacy: the right to marriage, the right to family relationships,

child rearing and education, and the right from unreasonable intrusion to bodily

31

integrity. Roe v. Wade, 410 U.S. 113, 153 (1973). The right to the privacy concerns

in this case are fundamental to our understanding of ordered liberty and implicit in

our nation’s history and tradition.

B. The School District’s Violation of Respondents’ Fundamental

Liberty Interests as Parents Must Be Subject to Intermediate

Scrutiny.

The Supreme Court’s long history of substantive due process analysis has led

to the conclusion that when the government interferes with certain fundamental

rights and liberty interests, “activities relating to marriage, procreation,

contraception, family relationships, child rearing and education,” the interference

must be justified with heightened scrutiny. Washington v. Glucksberg, 521 U.S.

702, 720. The types of rights that are given heightened scrutiny are those that are

deeply rooted in this Nation’s history and tradition, “such that neither liberty nor

justice would exist if they were sacrificed.” Id. Where these certain fundamental

rights are involved, the Court has required that infringement on these rights may

be justified by a compelling state interest, and that the legislation is “narrowly

drawn to express only the legitimate state interests at stake.” Roe v. Wade, 410

U.S. 113, 155; Kramer v. Union Free Sch. Dist. 15, 395 U.S. 621, 627 (1969). The

Supreme Court has regularly found that the regulation of family life is considered

an intrusion on a parent’s fundamental liberty interest. Id.

The Supreme Court has narrowly (and explicitly) decided which rights

infringements warrant the “highest of scrutiny,” strict scrutiny. However, in

instances where strict scrutiny is not explicitly applied but the Court still relies on a

32

“heightened protection” analysis, case law usually dictates that a form of

intermediate scrutiny, “or second order rational-basis review,” is applied. City of

Cleburn, Tex. v. Cleburne Living Ctr., 471 U.S. 432, 472 (1985). This heightened

review “approach[es] certain classifications skeptically, with judgment suspended

until the facts are in and the evidence is considered.” Id. The government, in those

instances of heightened scrutiny, must establish that the classification is

substantially related to important and legitimate objectives, and substantially

related to achieving those objectives. United States v. Virginia, 518 U.S. 515, 572

(1996). Intermediate scrutiny “seeks to assure that the hostility or thoughtlessness

with which there is reason to be concerned has not carried the day.” City of

Cleburn, Tex. v. Cleburne Living Ctr., 471 U.S. 432, 472

In Moore v. City of East Cleveland, where a local zoning ordinance was struck

down for violating a grandmother’s due process rights because it impeded on the

“sanctity of the family,” the Court’s analysis rested on the private nature of the

family. 431 U.S. 494, 504. When a law creates an intrusive regulation on family

life, “the usual judicial deference to the legislature is inappropriate.” Id. at 500.

The rational basis test is not appropriate when dealing with family life matters, and

“[the] Court must examine carefully the importance of the governmental interests

advanced and the extent to which they are served by the challenged regulation.” Id.

at 499. Moore crystallized the notion that the rational-basis test was not an

appropriate method to analyze cases where the state infringes on the sanctity of

family relations, and that a more searching analysis was required.

33

In Troxel v. Granville, as the most recent case involving child rearing, the

Court again found that the Due Process Clause provides heightened protection

against government interference with certain fundamental rights; child rearing and

the interest of parents in the care, custody and control of their children, the Court

continued, are perhaps the oldest of the fundamental liberty interests recognized by

the Courts to require heightened protection. 530 U.S. 57, 65 (2000). While the

Court did not explicitly apply strict scrutiny to the case, it found in its analysis of

the Washington statute that a more taxing standard, beyond the rational basis test,

applies. Id. The language of the Santosky v. Kramer decision, where the Court

struck down a part of a New York child negligence law, similarly found that the

lowest evidentiary standard, fair preponderance of the evidence, was

unconstitutional and that the “intermediate” evidentiary standard, clear and

convincing evidence, must be applied given the relationship between parent and

child, and the rights of parents in the care of their natural children. 455 U.S. 745,

753 (1982). After Moore, Troxel, and the heightened parallel evidentiary standard

established in Santosky, it follows, then, that the appropriate standard for

evaluating the constitutionality of cases that impede on a parent’s fundamental

liberty interest is greater than the rational basis test, but not quite strict scrutiny:

the intermediate scrutiny test.1

1 While intermediate scrutiny is frequently applied in gender discrimination places, the Court has applied

this standard in other instances. See Ward v. Rock Against Racism, 491 U.S. 781 (1989) (holding that

time, place, and manner regulations in a Free Speech context are subject to intermediate scrutiny, where

the restriction must serve a significant governmental interest).

34

Therefore, because the Walshes enjoy a fundamental liberty interest, implicit

in our concept of ordered liberty, in the care, custody, and control of their children, a

state intrusion by the School District on that interest must be subject to

intermediate scrutiny.

C. Petitioners Fail the Intermediate Scrutiny Test and Have

Violated Respondents’ Fundamental Right to the Care,

Custody, and Control of Their Children by Forcing the Walsh

Children to Watch the Vaccination Video.

By requiring the Walsh children to watch the Vaccination Video after

secluding them from the rest of the class, the School District violated the

Respondents’ right to the care, custody, and control of their children. The

appropriate test for evaluating the constitutionality of the School District’s action is

intermediate scrutiny. For the state’s intrusion to pass the intermediate scrutiny

test in this case, the School District must prove: (1) the challenged action furthers

an important government interest; (2) the challenged action is substantially related

to that interest. The School District fails the first prong of the intermediate

scrutiny test because the government interests pursued here are unwarranted

indoctrination, undermined parental authority, and punishment for a personal

belief. The School District also fails the second prong of the intermediate scrutiny

test because the Vaccination Video is not part of a general school curriculum, and

the secluded children cannot be reasonably expected to affect their parents’ personal

beliefs.

35

1. The state interests pursued by the School District in

application are not important government interests.

There is no question that the state, through the power of public schools, has

the right to regulate, supervise, and direct children. It is also undisputed that

“certain studies [that are] plainly essentially to good citizenship must be taught,

and nothing [should] be taught which is manifestly inimical to the public welfare.”

Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925). However, that power is not held

exclusively by the state; the Supreme Court has frequently found limitations on a

school’s right to govern, especially when it interferes with a parent’s right to rear

their children. Wisconsin v. Yoder, 406 U.S. 205, 235 (1972). To ensure that a

public school’s actions are within constitutional requirements, the school must have

an important government interest in pursuing the action. Unlike in a rational basis

analysis, the state’s interest in an intermediate scrutiny evaluation cannot be

hypothetical or “reasonably conceived” to achieve a specific purpose. United States

v. Carolene Prod. 304 U.S. 144, 147 (1938); United States v. Virginia, 518 U.S. 515,

572 (1996). Here, the School District alleges that The Truth About Vaccines was

implemented to teach children about the importance of vaccinations and for the

children to “know the truth about vaccines.” While furthering health awareness is a

reasonably conceivable interest, in its application, the School District’s primary

purpose in showing the Vaccination Video seemed to be to indoctrinate the

students, to undermine the parents’ authority, and to effectively punish students for

their parents’ beliefs, none of which are important government objectives.

36

The nature of a school system is such that “the state exerts great authority

and coercive power through mandatory attendance requirements and because of the

students’ emulation of teachers as role models and the children’s susceptibility to

peer pressure.” Edwards v. Aguillard, 482 U.S. 578, 584 (1987). For this reason,

the Courts have treated persuasive viewpoint efforts from teachers and school

officials with higher concern. See Lee v. Weisman, 505 U.S. 577, 588 (1992)

(observing that there are heightened concerns with protecting freedom of conscience

from subtle coercive pressure in the elementary and secondary public schools).

By showing the Vaccination Video to impressionable children, the School

District attempted to indoctrinate the students into approving vaccination efforts.

The Vaccination Video did not reflect an objective viewpoint on vaccination, nor was

it an informational documentary. Unlike the children in Parker v. Hurley, who read

books about a wide range of “family types,” one of which included gay couples, the

video here expressed one view point and went as far as to urge the Walsh children

to “spread the truth to [their] family.” 514 F.3d 87, 93 (1st Cir. 2008). This

distinction between exposure to objective, content-neutral material and the

subjective, opinionated Vaccination Video is precisely what causes “heightened

concern” among members of the Court; while the former’s purpose is to educate and

inform, the latter’s purpose is to force conformity to a certain lifestyle choice. In its

indoctrination of the impressionable, young children, the School District also

undermined the parents’ authority, another illegitimate state interest. This Court

has repeatedly recognized that parents’ authority to “direct the rearing of their

37

children is basic in the structure of our society.” Ginsberg v. New York, 390 U.S.

629, 639 (1968). The Walshes’ ability to play a “guiding role” in the upbringing of

their children is severely diminished when the purpose of the Vaccination Video

shown at West Beverly Elementary School is to urge parents to reconsider

vaccinations.2 While an inclination towards an idea or opinion may be the

unexpected effect of a public school policy, it runs contrary to this Court’s

jurisprudence to allow undermining of parents’ authority stand as one of the

primary purposes of a state policy. Wisconsin v. Yoder, 406 U.S. 205, 235; see also

Edwards v. Aguillard, 482 U.S. 578, 586 (1987) (holding that the school district’s

ban on instruction on the theory of evolution did not further academic freedom

because it fails to further the goal of “teaching all of the evidence.”).

Finally, the method by which the Vaccination Video is shown to the students

seems to imply that the actual driving force for the School District’s action was to

effectively punish students for their parents’ belief. While punishment for improper

behavior is within the realm of a school’s capacity under the theory of loco parentis,

illegitimate punishment, or, in this case, punishment for a parent’s personal belief

and unrelated to the child’s actions in school, falls outside that protected zone.

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 683 (1986). First, the

School District secludes the unvaccinated students from “fun” activities, like going

to the zoo or other school trips. The seclusion from other children and the intimate

environment while watching the Vaccination Video creates a heightened pressure

2 According to the lower court decision, Brandon and Brenda Walsh inquired of their parents why they

were not vaccinated, and questioned Cindy Walsh’s competence and authority.

38

on the impressionable children to feel: (1) that what their parents are doing is

wrong; and (2) that they are punished for their parents’ actions. Unlike the

students in any of the traditional school cases, Meyer-Pierce and Yoder, where the

school policies were uniformly applied to all students, the uniquely segregated

environment here exacerbates the punishment and indoctrination purpose of the

School District’s actions, neither of which is a substantial state interest sufficient to

satisfy the first prong of the intermediate scrutiny test.

2. The School District’s showing of the Vaccination Video is

not substantially related to their alleged interest in

furthering health awareness.

The second prong of the intermediate scrutiny test requires the state to show

that the challenged action is substantially related to the state’s purpose. Here, the

school alleges that the concern over “California-type outbreaks” motivated them to

educate the children of the dangers from lack of vaccination. However, relative to

the method by which the School District is pursuing this concern is not

substantially related to this alleged interest because the Vaccination Video is not

shown to the general school population or part of the general school curriculum, just

to a small segment of students.

The Vaccination Video not being shown to the general school audience shows

a glaring disconnect with the School District’s alleged objective: educating children

on the dangers of not vaccinating. In Fields v. Palmdale School Dist., where the

Ninth Circuit upheld a school’s right to include questions in the classroom about

sexual topics, the school survey policy was uniformly applied to the students, as

39

part of the general school curriculum. 427 F.3d 1197, 1200 (9th Cir. 2005).

Similarly, in Parker v. Hurley, the school teaching the various types of marriages,

as part of the class syllabus, was reasonably related to effective education and

pursuit of mental welfare to the students. 514 F.3d 87, 92. While persuasive

authority, the common trend among these cases is that the objectives are met

through uniform application to all students, giving less reason for the concern that

the school is pursuing a secondary agenda or an impermissible objective. In this

case, however, the School District’s segregated classroom environment gives the

“benefit” of vaccination education to only a few students, and not to the rest of the

classroom. The seclusion creates a disconnect between the School District’s alleged

objective – health education and education – and the result of the policy, where only

several “cherry-picked” students are privy to this educational exposure. Therefore,

the school’s showing of the Vaccination Video is not substantially related to their

alleged interest in furthering awareness of the danger of non-vaccination.

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CONCLUSION

For the foregoing reasons, Respondents respectfully request that this Court

(1) affirm the Twelfth Circuit’s summary judgment grant, finding the Health and

Safety Code §124.1 to be an unconstitutional violation of the Establishment Clause

of the First Amendment, and (2) affirm the Twelfth Circuit’s summary judgment

grant, finding that the School District violated the Walshes’ Due Process rights

pursuant to the Fourteenth Amendment.

Respectfully submitted,

Team 2416

Attorneys for Respondents.

A-1

APPENDIX A

First Amendment

United States Constitution

U.S. Const. amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.

B-1

APPENDIX B

Due Process Clause of the Fourteenth Amendment

United States Constitution

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.