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FFRF 2022 legal essay contest — 2nd place: Jacob Stock

Jacob Stock

FFRF awarded Jacob $3,000.

By Jacob Stock 

It is settled law that religious exemptions for public school vaccine mandates are not constitutionally required. Six states do not offer religious exemptions to vaccine mandates for students beginning school. 

Despite multiple challenges, courts have consistently upheld these statutes. Several states recently repealed existing religious exemptions in responses to public health crises, reflecting an understanding of the health risk religious exemptions pose. But lurking in the shadow of this trend toward better protecting students is a threat to states’ ability to eliminate religious exemptions. The hybrid-rights theory that emerged in the wake of Employment Division, Dept. of Human Resources of Oregon v. Smith. Since Smith, circuit courts have split over applying heightened scrutiny to Free Exercise challenges involving other constitutional claims — including parenting rights. 

Challenges to school vaccine requirements without religious exemptions necessarily involve the rights of parents alongside claims of religious liberty. Thus, such statutes are at risk of invalidation if courts apply heightened scrutiny in hybrid-rights cases. 


Religious exemptions to school vaccine mandates

States have long enjoyed broad powers to legislate regarding public health. The earliest recognition of states’ prerogative to mandate vaccination was Jacobson v. Massachusetts. Following closely in Jacobson’s footsteps was Zucht v. King, which upheld a state law mandating vaccination prior to admission to public school in Texas. Currently, every state has some vaccination requirement for children entering public school. All states offer medical exemptions to the vaccine requirement. All but six offer religious exemptions. Parents, nonprofits and religious groups have challenged all but one of the statutes lacking a religious exemption. No challenge to these laws has yet succeeded. 

But before thinking school vaccine mandates without religious exemptions are immune from invalidation, a closer look at these decisions may give pause. Courts did not decide any case under strict scrutiny: Instead, F.F. and We the Patriots USA, Inc. explicitly upheld the mandates under the rational basis test. To be sure, Workman and Brown opined in dicta that the laws under review would hypothetically survive strict scrutiny despite upholding them on other grounds. 

Regardless, neither case moved beyond the inquiry of whether public health is a compelling government interest to address whether the mandates were narrowly tailored to that interest. Courts particularly sympathetic to government imposition on religion may deem alternatives such as masking, social distancing, and remote learning as viable less-restrictive means to achieve public health goals and therefore invalidate such mandates as impermissibly burdensome on religious practice. 

Of course, this concern would be warranted only if courts apply strict scrutiny when faced with challenges to vaccine mandates lacking religious exemptions. Enter the hybrid-rights theory. 


The hybrid-rights circuit split

Understanding the threat posed by the hybrid-rights theory begins with Smith. There, the Supreme Court refused to apply strict scrutiny to a generally applicable criminal law that burdened two individuals’ free exercise of religion. Petitioners in Smith relied in part on Wisconsin v. Yoder for their argument in favor of adopting strict scrutiny. In Yoder, the Supreme Court sided with Amish parents who, based on their religion, did not wish to send their children to public school as required by state law. The Yoder court held that the parents’ Free Exercise rights outweighed the state’s interest in mandating school attendance. 

Though petitioner’s reliance on Yoder was unsuccessful in Smith, the majority distinguished Yoder in a way that has proved challenging for the circuits. The court held Smith could be distinguished from “hybrid cases” such as Yoder, cases in which the free exercise of religion was burdened along with another constitutional right, and — importantly — cases in which heightened scrutiny might be warranted. One hybrid case the court contemplated involved a burden on both Free Exercise and “the raising of one’s children in [particular religious] beliefs.” 

Since Smith, several circuit courts have grappled with how to address hybrid-rights cases. The decisions broadly fall into three categories. The first approach considers the Smith commentary regarding hybrid-rights cases as dicta and therefore not binding. The 2nd and 6th circuits have adopted this reasoning. Another approach, taken by the 1st and D.C. circuits, is to apply heightened scrutiny only when the plaintiff can demonstrate they have an “independently viable companion claim” to a Free Exercise claim. Attempting to strike a balance, the 9th and 10th circuits devised a related but slightly more lenient approach. Their solution is to apply heightened scrutiny if a plaintiff shows a companion claim to the Free Exercise challenge has a fair probability of success, short of the near certainty required in the 1st and D.C. circuit approach.

Recall that courts resolved the cases discussed in Part I by applying rational basis review. With such a low bar, it is little wonder the statutes survived challenge. But how would the same or similar statutes do when confronted with a theory accused of being “strict in theory, fatal in fact”? An empirical review of religious liberty cases subject to strict scrutiny showed the challenged laws fared poorly — only 21 percent survived. To be sure, courts uphold laws against challenges seeking religious exemptions more frequently than against challenges based on discriminatory treatment. Nonetheless, application of strict scrutiny to laws mandating vaccination without religious exemptions poses a serious risk those laws will be struck down. The question remains, though, whether Smith demands such a result. 


Resolving the split

From the outset, several courts viewed hybrid-rights with a healthy dose of skepticism. In addition to holding that the mention of hybrid rights in Smith was merely dicta, the 2nd and 6th circuits pointed out the incoherency of the theory. Primarily, these courts took issue with applying a different standard of review based on the number of constitutional claims a plaintiff brought. The 2nd Circuit expressed this concern in Leebaert v. Harrington: “We . . . can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated.” 

Unpersuaded by this criticism, several circuits apply hybrid-rights tests that explicitly base the level of review on the number of claims raised. In Brown v. Hot, Sexy & Safer Prods., Inc., the 1st Circuit held a plaintiffs’ claim failed because “[t]heir free exercise challenge [was] . . . not conjoined with an independently protected constitutional protection.” Requirements for the quality of the accompanying claim vary by court from near certitude to a fair probability of success. But absent from decisions applying the hybrid-rights theory is an independent justification for its use. Courts applying the theory seem to be making honest attempts to craft workable tests in light of what they view as a requirement from the Supreme Court, all the while aware of the persistent criticism of hybrid-rights claims.

Reliance on a dubious mandate from the Supreme Court is shaky ground for subjecting state laws to the most demanding review. Justice Souter’s concurrence in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah echoed some circuits’ concerns: 

[I]f a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all. 

Justice David Souter’s critique, though particularly applicable to those tests requiring near certainty of success for a companion claim, extends also to those that merely require a fair likelihood of success for an accompanying claim. Even courts adopting the hybrid-rights theory recognize the danger of “opening the floodgates” to a jumble of claims attacking laws on religious grounds. Given the unstable foundation and incoherence of the hybrid-rights theory, it would be unlikely to survive a challenge in the Supreme Court. Eliminating this approach would place laws vital to the health and well-being of children out of the easy reach of religious challenges. 



While the issues addressed here predate the Covid-19 pandemic, the urgency of vaccination has only increased since its inception. Unfortunately, the increased urgency has been matched by increased controversy and efforts to evade vaccination. States have been, and should remain, free from as many unnecessary obstacles when seeking to legislate to protect the health and safety of students. Thus, as between laws aimed at keeping students safe and parental challenges based on religion, conscience — and the law — dictate the scales be tipped toward the former. 

Jacob Stock is a third-year student at the Sandra Day O’Connor College of Law at Arizona State University. Following graduation, Jacob will begin work at the Arizona Attorney General’s Office in the Child and Family Protection division.