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Boone v. Boozman - 217 F. Supp. 2d 938 (E.D. Ark. 2002)


It is well established that a state may enact reasonable regulations to protect the public health and the public safety, and it cannot be questioned that compulsory immunization is a permissible exercise of the State's police power. The United States Supreme Court has long recognized that a state may require public and private school children to be immunized. The constitutionally-protected free exercise of religion does not excuse an individual from compulsory immunization; in this instance, the right to free exercise of religion and parental rights are subordinated to society's interest in protecting against the spread of disease.


Section 6-18-702 of the Arkansas Code Annotated requires that children be immunized from certain diseases before they may attend public or private school in the State of Arkansas. In enacting subsection (d) of that statute, the General Assembly conferred a religious exemption from the immunization requirements on individuals for whom "immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which [they are] an adherent or member." Plaintiff Cynthia Boone, on behalf of her daughter Ashley Boone, filed a 42 U.S.C. § 1983 action challenging the constitutionality of the immunization statute after her daughter was suspended from school because she had not received the required Hepatitis B immunization. The mother moved for summary judgment pursuant to the Fourteenth and First Amendments. Defendants, school district and some of its officers and employees, opposed the motion.


Did the state immunization statute that statute singles out "recognized churches" for preferential treatment for religious exemptions violate the Establishment Clause of the First Amendment upon application of the three-prong Lemon test?




The mother's motion for summary judgment under the Fourteenth Amendment was denied, but the mother's motion for summary judgment under the First Amendment was granted to the extent that the state statute with the religious exemption was stricken because it violated the Establishment Clause and Free Exercise Clause of the First Amendment. The Court proceeded with its First Amendment analysis and held that the "permissive accommodation" theory could not carry the school district past the first part of the Lemon test ("have a secular legislative purpose") because the immunization statute on its face spoke in terms of the religious tenets and practices of a recognized church or religious denomination. The effect was to discriminate against a nondenominational, nonsectarian individual with a sincerely held individual religious belief. Furthermore, the primary effect of the statutory exemption was that the state, by exempting some religious individuals and not others, acted to influence the public perception of different religions and religious beliefs disparately and without neutrality, as well as to inhibit the religious beliefs and practices of those individuals who opposed immunization but were not members of a religious organization that the state recognized. In practice, there was room in the department of health's inquiry for state officials' personal biases about what constituted a religion.

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