Court Monitor

Setback for Vaccine Police

A groundbreaking decision by a New Jersey appellate court just established that the State cannot endorse a religious exemption from vaccination -- as nearly every state allows -- without also endorsing a philosophical (non-religious) exemption. Valent v. Board of Review, No. A-4980-11T2 (June 5, 2014).

The unanimous three-judge ruling was in favor of nurse June G. Valent, who had declined to receive the flu vaccine as required by a hospital in New Jersey of its workers. In the past few years most hospitals have been imposing vaccination requirements on workers, with only narrow exemptions based on religion or a medical contraindication. While hospitals claim that vaccination of workers promotes safety for patients, these requirements actually fit into an overall push by pharmaceutical companies to force people to be vaccinated. Some payments to hospitals may be tied to their vaccination rates.

The religious exemption from the vaccine requirements was a narrow one at this hospital. It could only be claimed if accompanied by a note from the person's religious leader. Nurse Valent was willing to wear a protective facemask, just as those who claimed a religious exemption were required to wear after they declined the vaccine. But she could not establish a religious exemption, so the hospital fired her.

She then applied for state unemployment benefits, which the hospital opposed by alleging that she had been fired for insubordination, and thereby should not be entitled to unemployment. The New Jersey Department of Labor, which handles unemployment claims, ultimately ruled against her. She appealed to the appellate court in New Jersey, handling her own lawsuit pro se, without the help of an attorney.

In the strangest of twists, she then won a unanimous victory in court based on application of the First Amendment against the religious exemption. The Court found that the State could not endorse the hospital's religious exemption without also offering a non-religious equivalent, because the State cannot prefer religion over non-religion.

"The religion-based exemption irrefutably illustrates that the flu vaccination policy is not based exclusively on public health concerns because an employee claiming an exemption is only required to sign a form attesting to his or her faith-based reason for refusing to be vaccinated, accompanied with an appropriate note from a religious leader" held Judge Fuentes for the three-judge appellate panel.

A firestorm of opposition erupted in the media against the Arizona legislation, causing the governor to veto it. Evidently the ability to file lawsuits asserting discrimination by Christian businesses is a key part of the gay agenda.

The court observed that the "religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons. . . . Our Supreme Court has clearly cautioned that '[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.'" (Emphasis added.)

Courts have traditionally sided with mandatory vaccination, dating back to the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts, which said vaccination was reasonable and appropriate to protect the community against a frightful outbreak of smallpox. That tendency gave way here to the stronger hostility by courts against preferences for religion. The irony is that the collision of those two anti-liberty forces resulted in a victory for liberty.