24-681
Miller v. McDonald
In the
United States Court of Appeals
For the Second Circuit
August Term 2024
Argued: November 18, 2024
Decided: June 30, 2026
Docket No. 24-681
JOSEPH MILLER, EZRA WENGERD, JONAS SMUCKER, DYGERT ROAD SCHOOL,
PLEASANT VIEW SCHOOL, SHADY LANE SCHOOL,
Plaintiffs-Appellants,
v.
JAMES V. MCDONALD, in his official capacity as Commissioner of Health of the
State of New York,
Defendant-Appellee,
BETTY A. ROSA, in her official capacity as Commissioner of Education of the State
of New York,
Defendant.
Before: CABRANES, WESLEY, and LEE, Circuit Judges.
In 2019, New York repealed the religious beliefs exemption to its school immunization law. The law now applies to all students attending public, private, or parochial schools, except those who qualify for the law’s medical exemption. Plaintiffs—Amish parents, Amish community schools, and a representative of Amish schools in New York—sued under 42 U.S.C. § 1983, claiming that the law violates the Free Exercise Clause and their parental free-exercise rights under Wisconsin v. Yoder. The district court dismissed the complaint. We previously affirmed, but the Supreme Court vacated our judgment and remanded for
reconsideration in light of Mahmoud v. Taylor, 606 U.S. 522 (2025). Having reconsidered the case with the benefit of supplemental briefing, we again AFFIRM.
SHANNON G. DENMARK, Lehotsky Keller Cohn LLP, Washington, DC
(Kyle Hawkins, Lehotsky Keller Cohn LLP, Austin, TX; Scott A.
Keller, Mary Elizabeth Miller, Jacob B. Richards, Lehotsky
Keller Cohn LLP, Washington, DC; Christopher D. Wiest,
Covington, KY; Hiram Sassar, Justin Butterfield, First Liberty
Institute, Plano, TX; Elizabeth A. Brehm, Walker D. Moller, Siri
& Glimstad LLP, New York, NY, on the briefs), for
Plaintiffs-Appellants.
MARK S. GRUBE, Senior Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, Andrea Oser, Deputy Solicitor
General, on the briefs), for Letitia James, Attorney General of the
State of New York, New York, NY.
Steve Marshall, Alabama Attorney General, Edmund G. LaCour Jr.,
Alabama Solicitor General, Robert M. Overing, Alabama
Deputy Solicitor General, for Amici Curiae State of Alabama and
19 Other States.
PER CURIAM:
New York has long regulated immunization in schools. In 1860, New York
“directed and empowered” school officials to deny the admission of unvaccinated students, 1 making it the second state in the nation to mandate school vaccination. 2
In 1966, New York enacted a school immunization law in which students who
could not be vaccinated for medical reasons or students whose parents held
religious objections to vaccines were exempted. 3
New York maintained both exemptions until 2019. During 2018 and 2019,
the United States experienced the worst measles outbreak in over twenty-five
years; New York was the epicenter. Most cases occurred in communities with
clusters of unvaccinated individuals. Following that outbreak, the legislature
repealed the religious beliefs exemption while retaining the medical exemption.
Plaintiffs-Appellants are three “Amish community schools”—Dygert Road
School, Pleasant View School a/k/a Twin Mountain School, and Shady Lane
School—that have been fined for failing to comply with New York’s immunization
law; Ezra Wengerd, an elected representative of all Amish schools in New York;
and Jonas Smucker and Joe Miller, board members of their children’s Amish
community schools (collectively, “Plaintiffs”). The schools do not require a
1
Ch. 438 § 1, 1860 N.Y. Laws 761, 761.
2
See John Duffy, School Vaccination: The Precursor to School Medical Inspection, 33 J. Hist. Med. & Allied Scis. 344, 346 (1978).
3
Ch. 994 § 2, 1966 N.Y. Laws 3331, 3332–33.
certificate of immunization to attend because the parents “have sincerely held
religious beliefs which do not permit them to inject” their children with vaccines. 4
J.A. 13.
Plaintiffs brought a claim pursuant to 42 U.S.C. § 1983 against DefendantAppellee Dr. James V. McDonald, in his official capacity as the Commissioner of
Health of the State of New York (“the State”), alleging that the immunization law
infringes on their free exercise rights under the First and Fourteenth
Amendments. 5 The parents also argue that the law is unconstitutional because it
impairs Amish parents’ right to control the religious upbringing of their children
as recognized in Wisconsin v. Yoder, 406 U.S. 205 (1972). Plaintiffs moved to
preliminarily enjoin the law’s enforcement against them; the State moved to
dismiss. Chief Judge Elizabeth A. Wolford granted the State’s motion to dismiss,
concluding that Plaintiffs failed to plausibly allege a constitutional violation. The
4For purposes of reviewing the district court’s decision on the motion to dismiss, we accept as true the facts alleged in the complaint. Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015) (per curiam).
5
Plaintiffs also brought official-capacity claims against Dr. Betty A. Rosa, the current Commissioner of Education of the State of New York. The district court granted the State’s motion to dismiss those claims for lack of standing. Because Plaintiffs do not appeal that aspect of the district court’s decision, we do not address it. court denied Plaintiffs’ request for a preliminary injunction as moot. In March
2025, we affirmed.
The Supreme Court then granted certiorari, vacated our judgment, and
remanded for further consideration in light of Mahmoud v. Taylor, 606 U.S. 522
(2025). Miller v. McDonald, 146 S. Ct. 879 (2025). We directed supplemental
briefing and received Rule 28(j) letters addressing Mahmoud, the Supreme Court’s
subsequent decision in Mirabelli v. Bonta, 607 U.S. 492 (2026) (per curiam), and the
Fourth Circuit’s decision in Perry v. Marteney, 172 F.4th 315 (4th Cir. 2026). Having
reconsidered Plaintiffs’ parental free-exercise claim under Yoder in light of those
authorities, we conclude that Mahmoud does not change the result and accordingly
reaffirm the district court’s judgment.
BACKGROUND 6
New York Public Health Law § 2164 requires that children who attend
public, private, or parochial schools for more than fourteen days be immunized
against certain diseases. N.Y. Pub. Health Law § 2164(1), (2)(a), (7). As noted
above, New York previously allowed two exemptions from that requirement: if a
6
The following facts are drawn from Plaintiffs’ verified complaint and the legislative and administrative records. See Goe v. Zucker, 43 F.4th 19, 29 (2d Cir. 2022). Consistent with the parties’ briefs, we also draw from the preliminary injunction record. licensed physician certified that immunization would be “detrimental to a child’s
health,” id. § 2164(8), or if a child’s parent or guardian held “genuine and sincere
religious beliefs which are contrary to the [vaccination] practices,” id. § 2164(9)
(repealed 2019).
The legislature repealed the religious beliefs exemption on June 13, 2019.
The legislature recognized that “sustaining a high vaccination rate among school
children is vital to the prevention of disease outbreaks, including the
reestablishment of diseases that have been largely eradicated in the United States,
such as measles.” N.Y. Bill Jacket at 4A, 2019 A.B. 2371, Ch. 35. 7 Immunization
rates in New York had plummeted “far below the [Centers for Disease Control and
Prevention]’s goal of at least a 95% vaccination rate to maintain herd immunity.” 8
Id. Data from 2013 and 2014 indicated that “at least 285 schools in New York” had
“an immunization rate below 85%, including 170 schools below 70%.” Id.
7
We accord “contemporaneous interpretation of a statute . . . considerable weight in discerning legislative intent.” Brokamp v. James, 66 F.4th 374, 398 n.22 (2d Cir. 2023) (quoting Vatore v. Comm’r of Consumer Affs., 83 N.Y.2d 645, 651 (1994)). 8
“Herd immunity” refers to the percentage of individuals in a community who must be vaccinated to reduce the likelihood of a vaccine-preventable disease’s transmission. J.A. 584.
Shortly before its repeal, the percentage of students invoking the religious
exemption in private and parochial schools increased from 0.54% to 1.53%. N.Y.
Senate, Tr. Floor Proceedings, 242d Sess. 5250, 5389 (June 13, 2019) (“Senate Tr.”).
Indeed, its use tripled or quadrupled in some areas. Id. In six schools in Rockland
County—the hotspot of the measles outbreak—up to 20% of students had religious
exemptions. N.Y. Assembly, Tr. Floor Proceedings, 242d Sess. 1, 58–59 (June 13,
2019) (“Assembly Tr.”). Religious exemptions far outpaced medical exemptions—
five to one. Id. at 70.
In November and December 2021, New York’s Department of Health
(“DOH”) audited Plaintiff schools’ compliance with the immunization law. In
March 2022, DOH concluded that the schools had permitted some students to
attend beyond § 2164’s fourteen-day grace period without a certificate of
immunization, documentation of immunity, or a valid medical exemption. DOH
therefore charged the schools with violating § 2164(7)(a). After an administrative
hearing, the Commissioner of Health sustained the charges and imposed fines
totaling $118,000. 9
9
Each violation of § 2164 is subject to a fine of up to $2,000. The DOH considers each day that an unvaccinated student attends school to be a violation. The Commissioner of Health concluded the total fines were “principled and conservative under the
On June 2, 2023, Plaintiffs sued the State under 42 U.S.C. § 1983, claiming
that New York Public Health Law § 2164 violates their First and Fourteenth
Amendment rights. They allege that the Amish faith commands a self-reliant
lifestyle separate from the modern world. As a consequence of their “commitment
to a century’s old way of life,” “many Amish maintain profound religious
objections to vaccines.” J.A. 11. “Their beliefs also consider abortion murder and
aborted fetuses are inextricably intertwined with vaccine development . . . .” J.A.
35. Consistent with those religious beliefs, Plaintiff schools “do not require proof
of vaccination from students to attend school.” J.A. 11.
Plaintiffs refuse to comply with § 2164—either by vaccinating or
homeschooling their children. They assert that “a vital part of [Amish] children’s
spiritual development” is to learn “in a group setting.” J.A. 15. They contend the
fines and threat of additional penalties will shutter the Amish community’s
schools and their ability to educate children in a group setting. Plaintiffs sought
circumstances.” J.A. 127. More specifically, the Commissioner of Health’s order imposed a $52,000 fine against Dygert Road School, a $46,000 fine against Twin Mountain School, and a $20,000 fine against Shady Lane School. To calculate the fines against Dygert Road and Twin Mountain, the DOH multiplied the number of out-of-compliance students in each school by the maximum penalty (under the modest assumption that each of those students was out of compliance for only one day). Because Shady Lane provided no documentation for its students, the DOH assumed that only one student was not compliant for at least ten days.
an injunction to prohibit the State’s enforcement of § 2164 against them, a
declaration of the law’s unconstitutionality as applied to them, and attorney’s fees.
Shortly after filing their complaint, Plaintiffs moved for a preliminary
injunction. The State opposed the preliminary injunction request and moved to
dismiss Plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
The district court granted the State’s motion to dismiss. 10 Miller v. McDonald, 720
F. Supp. 3d 198, 218 (W.D.N.Y. 2024). It applied this Court’s reasoning in We The
Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, in which we
held that Connecticut’s repeal of the religious exemption to its school
immunization law, while maintaining the medical exemption, did not violate the
Free Exercise Clause. 76 F.4th 130, 156 (2d Cir. 2023). The district court explained
that § 2164 was “not materially different” from “Connecticut’s mandatory school
vaccination regime.” Miller, 720 F. Supp. 3d at 203. Therefore, We The Patriots
“compel[led] dismissal” of Plaintiffs’ free exercise claim. Id. at 202.
The district court also dismissed the free exercise claim that was combined
with the parents’ right “to regulate the upbringing and education of their
10
Dismissing all claims, the district court also denied Plaintiffs’ motion for a preliminary injunction as moot. Miller v. McDonald, 720 F. Supp. 3d 198, 218 (W.D.N.Y. 2024). children.” Id. at 218. The district court noted it was “not free to disregard Second
Circuit precedent,” which does not apply a heightened standard to such “hybrid
rights” claims. Id. This appeal followed.
DISCUSSION
To survive a motion to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review the district court’s decision
on the motion to dismiss de novo, accepting as true the facts alleged in the
complaint and drawing all reasonable inferences in Plaintiffs’ favor. We The
Patriots, 76 F.4th at 144. “In addition to the facts alleged in the complaint, ‘as a
fundamental matter, courts may take judicial notice of legislative history.’” Id. at
136 (quoting Goe v. Zucker, 43 F.4th 19, 29 (2d Cir. 2022)).
I. Free Exercise Claims
The Free Exercise Clause of the First Amendment applies to the states
pursuant to the Fourteenth Amendment, and provides that the states “shall make
no law . . . prohibiting the free exercise” of religion. However, “the right of free
exercise does not relieve an individual of the obligation to comply with a ‘valid
and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Emp. Div., Dep’t
of Hum. Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee,
455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).
A neutral and generally applicable law’s burden on religion is constitutional
if the law passes the relatively low hurdle of rational basis review—that the state
has chosen a means for addressing a legitimate government interest rationally
related to achieving that goal. See, e.g., Kane v. De Blasio, 19 F.4th 152, 166 (2d Cir.
2021) (per curiam). If a law is not neutral or generally applicable, however, the
government must demonstrate that the law satisfies strict scrutiny, which requires
the law “to further ‘interests of the highest order’ by means ‘narrowly tailored in
pursuit of those interests.’” Tandon v. Newsom, 593 U.S. 61, 64–65 (2021) (per
curiam) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546
(1993)). As the Supreme Court explained in Smith, requiring all laws that burden
religion to satisfy the demands of strict scrutiny “would open the prospect of
constitutionally required religious exemptions from civic obligations of almost
every conceivable kind,” including “compulsory vaccination laws.” 494 U.S. at
888–89. “[A]dopting such a system would be courting anarchy.” Id. at 888. The
Supreme Court recently reaffirmed this general rule, explaining that “the government is generally free to place incidental burdens on religious exercise so
long as it does so pursuant to a neutral policy that is generally applicable.”
Mahmoud, 606 U.S. at 564.
Indeed, the Supreme Court and this Court have consistently viewed
immunization laws with approval. In Jacobson v. Massachusetts, the Supreme Court
held that a state had the power to mandate vaccination against smallpox for adults
who were “fit subject[s] of vaccination.” 197 U.S. 11, 38–39 (1905). In Zucht v. King,
the Supreme Court upheld a city ordinance requiring children to present a
certificate of vaccination before attending school. 260 U.S. 174, 175–77 (1922). This
Court has repeatedly upheld neutral and generally applicable immunization laws
in the face of free exercise challenges. 11
11
See, e.g., We The Patriots USA, Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130, 147– 48 (2d Cir. 2023) (repeal of Connecticut’s religious exemption to its school immunization law was a neutral and generally applicable law and survived rational basis review); Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (per curiam) (temporary school exclusion of children with religious exemptions during chicken pox outbreak not unconstitutional because “New York could constitutionally require that all children be vaccinated in order to attend public school”); We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 290 (2d Cir. 2021) (per curiam) (plaintiffs not likely to succeed in showing that mandatory vaccination of healthcare employees without religious exemption was not neutral or generally applicable); Kane v. De Blasio, 19 F.4th 152, 166 (2d Cir. 2021) (per curiam) (vaccine mandate for teachers “plainly satisfies” rational basis review).
Plaintiffs concede that New York Public Health Law § 2164 satisfies rational
basis review—immunization programs reduce disease. However, they argue this
case is different from the long line of cases upholding immunization laws because
§ 2164 is not neutral or generally applicable. Plaintiffs further argue that the law
cannot withstand strict scrutiny, and therefore it is unconstitutional as applied to
them.
Neutrality
Plaintiffs contend that § 2164’s text and the statements of several legislators
reveal a discriminatory motive. Rejecting those arguments, the district court
concluded that the law did not “target[] religious belief,” and that the legislative
record revealed “no evidence of hostility.” Miller, 720 F. Supp. 3d at 210–11. We
agree.
A state “fails to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their religious nature.” Fulton v.
City of Philadelphia, 593 U.S. 522, 533 (2021). “[I]t is not enough for a law to simply
affect religious practice; the law or the process of its enactment must demonstrate
‘hostility’ to religion.” We The Patriots, 76 F.4th at 145.
New York Public Health Law § 2164 is neutral on its face. It does not target
or affirmatively prohibit religious practices. Cf. Roman Cath. Diocese of Brooklyn v.
Cuomo, 592 U.S. 14, 17 (2020) (per curiam) (applying strict scrutiny and enjoining
regulation that “single[d] out houses of worship for especially harsh treatment”);
Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene,
763 F.3d 183, 194 (2d Cir. 2014) (applying strict scrutiny to regulation that targeted
only “religious actors performing a religious practice, and during a religious
ceremony”). The law simply applies New York’s school immunization
requirements to all schoolchildren who do not qualify for the law’s medical
exemption. Moreover, the act of repealing the religious exemption did not “in and
of itself transmute” this otherwise neutral law into one “that targets religious
beliefs.” We The Patriots, 76 F.4th at 149 (quoting F.F. ex rel. Y.F. v. State, 66 Misc.
3d 467, 478 (Sup. Ct. 2019), aff’d sub nom. F.F. v. State, 194 A.D.3d 80 (3d Dep’t
2021)).
Nor does the legislative history reveal an anti-religious bias. Plaintiffs argue
that statements made by a small number of legislators, some of whom sponsored
the amendments in their respective houses, evidence religious animus. But
Plaintiffs have not alleged facts to suggest that those remarks infected “a sizeable portion” of legislators’ votes or otherwise influenced the law’s enactment. See
United States v. Suquilanda, 116 F.4th 129, 143–44 (2d Cir. 2024); see also F.F., 194
A.D.3d at 86 (statements from three percent of the legislature did not “taint the
actions of the whole” in passing § 2164). To the contrary, the legislative record is
full of respectful statements in support of religious freedoms. 12 The final vote
passing the legislation—84 to 61 in the Assembly and 36 to 26 in the Senate—
further reflects the “spirited floor debate among the legislators” and their
thoughtful consideration of the interests at stake. F.F., 194 A.D.3d at 86; Bill Jacket
at 3–4.
These circumstances differ from where discriminatory intent can be
ascribed to a small group of decision-making officials. For example, in Masterpiece
Cakeshop v. Colorado Civil Rights Commission, the Supreme Court held that
statements made by several of seven commissioners were hostile to religion and
therefore “cast doubt on the fairness and impartiality” of the administrative
enforcement proceeding, particularly given that no one disavowed the substance
12
See, e.g., N.Y. Sponsor’s Memorandum, 2019 S.B. S2994-A, 242d Sess. (acknowledging that “freedom of religious expression is a founding tenet of this nation”); Senate Tr. at 5414 (“I mean, we’re talking about freedom of religion; . . . [i]t is not an easy decision.”); id. at 5451 (“I will be recorded in the negative on this vote, but I do appreciate the debate and the respectfulness with which this issue was approached today.”).
of the statements. 584 U.S. 617, 634–36 (2018). The remarks were made “by an
adjudicatory body deciding a particular case”—”a very different context” from
“statements made by lawmakers.” Id. at 636. Similarly, in M.A. v. Rockland County
Department of Health, this Court remanded for a jury to consider whether
statements made by the two government officials responsible for issuing a
challenged emergency declaration evinced religious animus. 53 F.4th 29, 37–38
(2d Cir. 2022).
By contrast, the motives of a small number of legislators cannot be attributed
to the legislative body as a whole. A member of the Assembly speaks for himself
in the well of the chamber, for each legislator has “a duty to exercise their
judgment and to represent their constituents.” Cf. Brnovich v. Democratic Nat’l
Comm., 594 U.S. 647, 689–90 (2021). It is “insulting to suggest” that legislators
voting for a bill are simply acting at the bill’s sponsors’ behest. Id. at 690. Plaintiffs
have not plausibly alleged that § 2164 is not neutral.
General Applicability
A law is not generally applicable in two circumstances: (1) when the law
treats comparable secular conduct more favorably than religious activity, Tandon,
593 U.S. at 62, or (2) when “it ‘invites’ the government to consider the particular reasons for a person’s conduct by providing ‘a mechanism for individualized
exemptions,’” Fulton, 593 U.S. at 533 (alteration omitted) (quoting Smith, 494 U.S.
at 884). Plaintiffs argue that both circumstances are present here.
1. Treatment of Comparable Secular Activity
Plaintiffs contend that exempting students for medical reasons treats
comparable secular conduct more favorably than religious beliefs. The district
court concluded that We The Patriots “forecloses the argument that the medical
exemption and the repealed religious exemption are comparable.” Miller, 720 F.
Supp. 3d at 217. We agree.
Secular conduct is not always “comparable” to religious conduct. It is
“comparable” when the secular conduct poses risks “at least as harmful to the
legitimate government interests” justifying the law as posed by the religious
conduct incidentally burdened by the law. See Cent. Rabbinical Cong., 763 F.3d at
197; see also Tandon, 593 U.S. at 62.
New York’s interest in passing § 2164 was in “protect[ing] the health of all
New Yorkers, particularly our children,” N.Y. Sponsor’s Memorandum, 2019 S.B.
S2994-A, from “disease outbreaks” by “sustaining a high vaccination rate among
school children,” Bill Jacket at 4A. When repealing its religious exemption, Connecticut identified effectively the same interest: to “protect the health and
safety of Connecticut students and the broader public.” We The Patriots, 76 F.4th
at 151. As such, the same reasons justifying the lack of comparability in We The
Patriots apply here. Repealing the religious exemption decreases “to the greatest
extent medically possible” the number of unvaccinated students and thus the risk
of disease; maintaining the medical exemption allows “the small proportion of
students” who medically “cannot be vaccinated” to avoid the health consequences
that “taking a particular vaccine would inflict.” Id. at 153. Exempting religious
objectors, however, detracts from that interest. Religious exemptions increase “the
risk of transmission of vaccine-preventable diseases among vaccinated and
unvaccinated students alike.” Id.
The two exemptions also are meaningfully different in scope and duration.
The medical exemption is granted only with “sufficient” documentation of the
child’s contraindication to “a specific immunization.” N.Y. Comp. Codes R. &
Regs. 10 § 66-1.3(c) (emphasis added). It has limits; it lasts only “until such
immunization is found no longer to be detrimental to the child’s health,” N.Y. Pub.
Health Law § 2164(8), and “must be reissued annually,” N.Y. Comp. Codes R. &
Regs. § 66-1.3(c). Meanwhile, the religious exemption was generalized to all vaccines for the duration of that child’s school admission. The religious
exemption’s sweep had a far greater ability to undermine the State’s interest in
preventing the spread of disease.
Plaintiffs argue that analyzing risk in the aggregate, as we did in We The
Patriots, misses the point: They note that the risk of transmission of the “tiny”
Amish population, who live “in isolated, remote communities,” “pales in
comparison” to the “sum total of medically unvaccinated children statewide.”
Appellants’ Br. 34–35. To begin with, we have rejected the notion that the
comparability analysis should be governed by a “one-to-one comparison.” Hochul,
17 F.4th at 287; see We The Patriots, 76 F.4th at 152–53 (explaining that the Supreme
Court in Tandon compared “gatherings that were religious or secular, private or
commercial” and that the focus is on “aggregations of individual behaviors, not
individual behaviors themselves”). A closer look at the State’s interest in passing
§ 2164 exposes the flaw in Plaintiffs’ argument.
New York passed § 2164 in response to the 2018 to 2019 measles outbreak.
Legislators felt particularly concerned about the concentration of unvaccinated
children with religious exemptions in the same schools. See, e.g., Senate Tr. at 5385
(noting that the New York City Department of Health traced 44 measles cases, including 26 students with religious exemptions, to one child with a religious
exemption); Assembly Tr. at 34; Bill Jacket at 4A. Plaintiffs allege that nearly all
Amish schoolchildren are unvaccinated. That means their schools are made up of
a clustered population of almost 100% unvaccinated students—precisely the
circumstances that most concerned the State. The examples included in the record
of measles, pertussis, tetanus, and/or polio recently spreading in certain Amish
communities across the nation and in New York demonstrate that Amish isolation
does not protect their communities from disease. Thus, the unique attributes of
Amish communities do not present a lesser risk as it pertains to the State’s interest
in protecting New Yorkers from disease. 13 Plaintiffs have not plausibly alleged
that the law favors comparable secular conduct.
2. Individualized Exemptions
A law also is not generally applicable when it extends broad discretion to
government officials to grant exemptions based on their assessment of “which
reasons for not complying” with the law “are worthy of solicitude.” Fulton, 593
13
Plaintiffs also allege there are 66,000 unvaccinated students without an exemption and other unvaccinated people in schools, such as teachers and maintenance staff. They argue these allegations demonstrate the law is significantly underinclusive. But these wholly speculative allegations, stripped of any context, do not raise an inference of unfavorable treatment towards religious conduct.
U.S. at 537 (explaining that allowing an official “sole discretion” to grant an
exemption “renders a policy not generally applicable”). Plaintiffs contend § 2164’s
medical exemption creates just that kind of problem. Again, we disagree.
The medical exemption works as follows: A child whose physician certifies
that a vaccine “may be detrimental to [the] child’s health” does not have to receive
that vaccine “until such immunization is found no longer to be detrimental to the
child’s health.” N.Y. Pub. Health Law § 2164(8). “May be detrimental to the
child’s health” means “that a child has a medical contraindication or precaution to
a specific immunization consistent with [Advisory Committee on Immunization
Practices] guidance or other nationally recognized evidence-based standard of
care.” N.Y. Comp. Codes R. & Regs. 10 § 66-1.1(l). The child’s parent must provide
a completed medical exemption certification form, “containing sufficient
information to identify a medical contraindication to a specific immunization and
specifying the length of time the immunization is medically contraindicated.” Id.
§ 66-1.3(c). School officials are authorized to ask for “additional information
supporting the exemption.” Id.
New York’s medical exemption fits neatly within the contours of other
exemptions to immunization that we have held to be constitutionally permissible. The statutory exemption is “mandatory,” We The Patriots, 76 F.4th at 150, and
applies to an “objectively defined” group, Hochul, 17 F.4th at 289. In addition, the
authority conferred to physicians is not discretionary; a physician’s use of her
professional medical judgment is limited by the statute and regulations. Id. The
same is true of the authority conferred upon school officials. Even though school
officials have the authority to conclude that the documents submitted in support
of a medical exemption contain sufficient (or insufficient) information, they do not
have “discretion to approve or deny exemptions on a case-by-case basis” for any
reason. 14 We The Patriots, 76 F.4th at 151; cf. Fulton, 593 U.S. at 536–37.
Practically speaking, Plaintiffs argue that school officials have “the power
to press the red or green light on each medical exemption request.” J.A. 31. For
example, they allege that up to 50% of students had medical exemptions in one
school while zero students had a medical exemption in another school in the same
community and that medical exemptions are granted inconsistently year to year.
Those allegations do not change our conclusion. Without information about a
14
Plaintiffs argue this conclusion is at odds with Goe v. Zucker, in which we described the delegation of “authority to grant a medical exemption” to school officials. 43 F.4th 19, 33 (2d Cir. 2022). The power to accept a child’s application is beside the point. The statute does not allow school officials to “decide which reasons for not complying with the policy are worthy of solicitude.” Fulton v. City of Philadelphia, 593 U.S. 522, 537 (2021). student population and its medical needs, there is no way to infer a discretionary
element from the school officials’ acceptance of medical exemption requests.
Moreover, for the reasons explained, the statute does not create a system in which
school officials are given improper discretion to evaluate the reasons given for a
requested medical exemption.
* * *
In sum, Plaintiffs have failed to allege that § 2164 is anything but neutral
and generally applicable. The district court therefore did not err in applying
rational basis review. As noted, Plaintiffs have conceded that the law satisfies
rational basis review. See also Zucker, 43 F.4th at 32 (finding the protection against
disease through immunization a “legitimate” state interest); We The Patriots, 76
F.4th at 156 (immunization requirement rationally limited to schools “because
only at school is attendance mandated by law”). Accordingly, we affirm the
district court’s holding that Plaintiffs have failed to allege a free exercise claim.
II. The Yoder/Mahmoud Claim 15
Plaintiffs’ remaining argument is that, even if § 2164 is neutral and generally
applicable, it burdens the parental free-exercise right recognized in Wisconsin v.
Yoder, 406 U.S. 205 (1972), and clarified in Mahmoud v. Taylor. We conclude that it
does not.
In Yoder, the Supreme Court held that the Free Exercise Clause entitled
Amish parents to an exemption from a compulsory-attendance law requiring their
children to continue formal schooling beyond the eighth grade, where exposure to
worldly influences would undermine the religious upbringing central to the
Amish way of life. 406 U.S. at 218. Mahmoud rejected the view that Yoder is
confined to its facts. 16 Instead, it held that Yoder states a rule extending beyond
compulsory-education laws: When a law imposes a burden “of the same character
15
Plaintiffs framed this argument as a “hybrid rights” claim combining free exercise with parental rights. This Court has declined to treat Smith’s reference to free-exercise claims brought “in conjunction with other constitutional protections” as an independent trigger for heightened scrutiny. Smith, 494 U.S. at 881; Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001). We therefore analyze Plaintiffs’ claim under the Yoder standard as clarified by Mahmoud.
16
Before Mahmoud, several courts—including the decision the Supreme Court reversed in Mahmoud—had read Yoder as limited to its facts. See, e.g., Mahmoud v. McKnight, 102 F.4th 191, 211 (4th Cir. 2024); Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 250 (3d Cir. 2008) (per curiam); Parker v. Hurley, 514 F.3d 87, 100 (1st Cir. 2008). Mahmoud rejected that understanding. 606 U.S. at 558. Our analysis does not depend on confining Yoder to its facts; it turns on the character of the burden § 2164 imposes upon Plaintiffs. as that” in Yoder, “strict scrutiny is appropriate regardless of whether the law is
neutral or generally applicable.” 606 U.S. at 565. A burden is “of the same
character” when it “substantially interfer[es] with the religious development” of a
child and “pose[s] ‘a very real threat of undermining’ the religious beliefs and
practices that the parents wish to instill.” Id. (quoting Yoder, 406 U.S. at 218).
Mahmoud applied that principle to a school board’s refusal to allow parents
to opt their young children out of classroom instruction using storybooks that
conveyed normative messages contrary to the parents’ religious beliefs. 606 U.S.
at 550–54. The Court held that the policy, like the compulsory-attendance law in
Yoder, threatened to interfere with the children’s religious development by
subjecting them to schooling that pressured them toward views at odds with their
parents’ faith. See id. at 553–54, 565.
Section 2164 is different. Even assuming that the statute burdens Plaintiffs’
religious exercise by conditioning in-person school attendance on vaccination, the
burden does not operate in the way the burdens in Yoder and Mahmoud did.
Section 2164 does not regulate what children are taught, does not require them to
affirm any belief, does not expose them to state-selected instruction contrary to
their parents’ faith, and does not enlist school officials to displace parental religious formation. It imposes a health-and-safety condition on in-person school
attendance to reduce the spread of communicable disease. N.Y. Pub. Health Law
§ 2164(1), (2)(a), (7). The burden may be serious, but it is not the kind of state
interference with a child’s religious development that triggered strict scrutiny in
Yoder or Mahmoud.
Plaintiffs respond that § 2164 actually imposes a greater burden than the law
in Mahmoud and therefore must impose a burden of the same character. In their
view, vaccination is an affirmative and irreversible act, while unwanted classroom
instruction can be resisted at home. But that argument measures the wrong thing.
Mahmoud asks whether a burden is “of the same character” as the burden in Yoder,
not whether it is more or less serious. 606 U.S. at 565. A greater burden in degree
is not necessarily the same burden in kind. 17
The Supreme Court’s decision in Mirabelli does not require a different result.
There, the Court vacated a stay of an injunction against policies that allegedly
barred schools from telling parents that their child was undergoing a gender
17
For example, a heavy fine is not of the same character as a sentence of imprisonment, even if the former burdens a defendant more than a brief jail term would. So too, § 2164 does not impose a burden of that character merely because it may weigh on Plaintiffs more heavily than the policy in Mahmoud.
transition at school unless the child consented. Mirabelli, 607 U.S. at 492–93, 498.
Mirabelli confirms that Mahmoud reaches beyond curriculum. It remains a case
about school officials concealing from parents a matter central to their child’s
identity and upbringing, and thus displacing the parents’ role in it. Section 2164
does neither. It conceals nothing from parents and displaces no part of their
authority over a child’s religious upbringing.
Our conclusion accords with the Fourth Circuit’s post-Mahmoud decision in
Perry v. Marteney, 172 F.4th 315 (4th Cir. 2026) (Wilkinson, J.). There, the court
vacated a preliminary injunction imposing a religious exemption from West
Virginia’s school-vaccination law, which, like § 2164, contains a medical
exemption but no religious exemption. Perry, 172 F.4th at 319. The Fourth Circuit
distinguished compulsory vaccination from the educational burdens in Yoder and
Mahmoud in terms directly applicable here:
The burden imposed by West Virginia’s compulsory vaccination law is not
remotely “of the same character” as those imposed in Yoder and Mahmoud.
The law is a public health measure, not an instrument of ideological
indoctrination. It does not expose children to values or beliefs that might
be hostile to their parents’ religious beliefs. It does not require that school
instruction extoll the virtues of vaccines. All the law requires is that, in the
interest of protecting others, children get themselves vaccinated before
attending school. The need for some to protect the health and well-being
of all was not present in Yoder or Mahmoud.
Id. at 327 (citation omitted); cf. Kondilis v. City of Chicago, 160 F.4th 866, 871 n.4 (7th
Cir. 2025) (concluding, after Mahmoud, that a COVID-19 vaccination-status
reporting requirement did not impose a burden of the same character as Yoder or
Mahmoud). Although Perry arose in a different educational setting, its reasoning
on the character of a compulsory vaccination requirement is persuasive here. 18
Therefore, we conclude that the district court properly dismissed Plaintiffs’
Yoder claim.
CONCLUSION
We have reconsidered our decision in light of Mahmoud, the parties’
supplemental briefs, and their Rule 28(j) submissions, and we adhere to our
conclusion. We have also reconsidered Plaintiffs’ remaining arguments and find
them to be without merit. For the foregoing reasons, the judgment of the district
court is AFFIRMED.
18
Other district courts have reached similar conclusions in post-Mahmoud challenges to school-vaccination requirements. See, e.g., Grimsby v. Pan, No. 5:25-cv-01575, 2025 WL 2829502, at *6 (C.D. Cal. Aug. 29, 2025), appeal docketed, No. 25-6100 (9th Cir. Sept. 29, 2025) (concluding that a school vaccine mandate is “not comparable to the kind of educational instruction that was directly contrary to the religious teachings of the Mahmoud plaintiffs”).