We the Patriots USA, Inc. v. Conn. Office of Early Childhood Dev.

579 F.Supp.3d 290

WE THE PATRIOTS USA, INC.; CT Freedom Alliance, LLC; Constantina Lora; Miriam Hidalgo; and Asma Elidrissi, Plaintiffs,

v.CONNECTICUT OFFICE OF EARLY CHILDHOOD DEVELOPMENT; Connecticut State Department of Education; Connecticut Department of Public Health; Bethel Board of Education; Glastonbury Board of Education; and Stamford Board of Education, Defendants.

Civil No. 3:21cv597 (JBA)

United States District Court, D. Connecticut.

Signed January 11, 2022

Brian Festa, Bristol, CT, Earl Austin Voss, Kevin Murray Smith, Zachary Edward Reiland, Norman A. Pattis, The Pattis Law Firm, LLC, New Haven, CT, for Plaintiffs.

Alayna M. Stone, Darren P. Cunningham, Michael Skold, Timothy J. Holzman, State of Connecticut Office of the Attorney General, Hartford, CT, for Defendants Connecticut Office of Early Childhood Development, Connecticut State Department of Education, Connecticut Department of Public Health.

Johanna G. Zelman, Michael C. Harrington, Ford Harrison, LLP, Hartford, CT, for Defendants Bethel Board of Education, Stamford Board of Education.

Thomas R. Gerarde, Howd & Ludorf, Hartford, CT, for Defendant Glastonbury Board of Education.

ORDER GRANTING MOTIONS TO DISMISS

Janet Bond Arterton, U.S.D.J.

The Religion Clause of the First Amendment itself contains two clauses—the Establishment Clause and the Free Exercise Clause. U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."). "[T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." Locke v. Davey , 540 U.S. 712, 719, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (concluding that the state did not violate the Free Exercise Clause where it refused to provide scholarship aid to students seeking devotional theology degrees). Religious exemptions to vaccine mandates provide such an example. See Phillips v. City of N.Y. , 775 F.3d 538, 543 (2d Cir. 2015) ("New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs.").

Connecticut Public Act No. 21-6 ("P.A. 21-6") requires students in public or private school to be vaccinated against certain communicable diseases. (Compl. [Doc. # 1] ¶ 17.) Connecticut law previously allowed students to obtain a religious exemption to the vaccine requirement, but section one of P.A. 21-6 provides no religious exemption to students that do not have a prior existing exemption. (Id. ) Plaintiffs seek to permanently enjoin Defendants from enforcing P.A. 21-6 and request a declaratory judgment that P.A. 21-6 violates the Free Exercise Clause of the First Amendment; the right to privacy and medical freedom under the First, Fourth, Fifth, and Fourteenth Amendments; the Equal Protection Clause of the Fourteenth Amendment; the right to child rearing under the Fourteenth Amendment; and the Individuals with Disabilities Education Act ("IDEA"). (Id. at 14.) Defendants move to dismiss all five counts [Docs. ## 21, 22, 23]. Child USA, Americans United for Separation of Church and State, Central Conference of American Rabbis, Interfaith Alliance Foundation, Men of Reform Judaism, Reconstructionist Rabbinical Association, Union for Reform Judaism, and Women of Reform Judaism join as amici curiae, urging dismissal of Plaintiffs’ complaint [Docs. ## 25, 27].

For the reasons that follow, the Court GRANTS Defendants’ Motions to Dismiss [Docs. ## 21, 22, 23]. In summary, the Court concludes that Counts One through Four against the State Agency Defendants must be dismissed for lack of subject matter jurisdiction because the state agencies are "arms of the state" and entitled to Eleventh Amendment Immunity. Counts One through Five brought by the associational plaintiffs are also dismissed for lack of jurisdiction because these plaintiffs lack associational standing.

The individual counts must be dismissed for failure to state a claim. Count One, alleging a violation of the Free Exercise Clause, is dismissed because mandatory vaccination as a condition to school enrollment does not violate the Free Exercise Clause. However, even if P.A. 21-6 was not foreclosed by Supreme Court and Second Circuit precedent, it is constitutional because it is a neutral law of general applicability which is rationally related to a legitimate state purpose. Plaintiffs’ second count, alleging a violation of the right to privacy and medical freedom, fails to state a claim because there is no overriding privacy right to decline vaccination. Count Three, alleging a violation of the Equal Protection Clause, fails to state a claim because Plaintiffs do not plead facts that overcome the rationality of the state's classification. Count Four is dismissed because Plaintiffs allege a violation of the right to childrearing that is coextensive with its dismissed Free Exercise Clause count. Finally, Count Five, brought under IDEA, is dismissed because Plaintiffs failed to plead that they receive special education under IDEA.

I. Facts Alleged

A. Connecticut Public Act No. 21-6

Connecticut law requires students to receive immunization against certain communicable diseases before enrolling in school. Conn. Gen. Stat. § 10-204a(a).¹ Prior to April 28, 2021, students could apply for medical and religious exemptions to the immunization requirement. (Compl. ¶¶ 15-18; see Pl.’s Opp'n at 2-3). Under P.A. 21-6, students in kindergarten through grade twelve who had already received a religious exemption continue to be exempt from the vaccination requirement.² (Compl. ¶ 17.) Children in preschool or prekindergarten programs who previously claimed a religious exemption, however, must be vaccinated by September 1, 2022 or two weeks after transferring to another school program, whichever is later. (Id. ; Ex. B, Compl., at 5.) No religious exemption is available to them. (Compl. ¶ 17.)

B. Vaccinations

Plaintiffs allege that there are ten identified vaccines that contain cell lines derived from aborted fetal cells. (Id. ¶¶ 20-23.) They further allege that vaccinations are harmful because the "presence of very small amounts of human fetal cells and DNA in the human blood can create a very strong autoimmune reaction in a person by which his [sic] body turns against itself and starts killing its own cells and tissues." (Id. ¶ 24.) They also assert that certain vaccines include animal cells and pork derivatives. (Id. ¶¶ 34, 39.)

C. The Parties

This case is brought by five plaintiffs: two associations and three individuals. The first associational plaintiff, We the Patriots USA, Inc. ("WTP"), is a nonprofit charity that is "dedicated to promoting constitutional rights and other freedoms" and seeks to "advanc[e] religious freedom, medical freedom, parental rights, and educational freedom for all." (Id. ¶ 2.) WTP states that "[a] significant number of its members are Connecticut parents affected by matters complained of herein." (Id. ) The second associational plaintiff, CT Freedom Alliance, LLC ("Alliance"), is a public interest organization similarly committed to "advocating for religious freedom, medical freedom, parental rights, and educational freedom among others." (Id. ¶ 3.) Alliance asserts that "[m]ost of its members are parents affected by the legislation complained of herein." (Id. ) Neither Associational Plaintiff identifies any individual member by name. (See id. ¶¶ 2-3.)

Plaintiff Costantina Lora is a Connecticut resident with a child enrolled in preschool in Bethel, Connecticut. (Id. ¶ 25.) Her child previously received a religious exemption but will need to be vaccinated to enroll in kindergarten under P.A. 21-6. (Id. ¶ 30.) As a Greek Orthodox Christian, she objects to vaccinating her children because vaccines contain "aborted fetal cells," and she believes that injecting herself and her children with these cells "would constitute participation in what she feels was an act of intentional, premeditated murder." (Id. ¶ 27.) She also objects to the presence of cells from other animals and chemicals in vaccines, as she believes this is "morally wrong." (Id. ) Further, she "personally hold[s] a general religious belief that harming children is morally wrong" and believes that vaccinating her children "would harm them, thus rendering it wrong." (Id. ¶ 28.)

Plaintiff Miriam Hidalgo is a Connecticut resident whose children will be subject to the vaccination requirement in Glastonbury, Connecticut. (Id. ¶ 31.) She is Catholic and believes that the use of "aborted fetal cells" in vaccines constitutes murder and violates her family's religious beliefs. (Id. ¶¶ 32-33.) She also objects to vaccines that contain the "cells of other animals," because as part of her religion, she raises her children as vegans. (Id. ¶ 34.)

Plaintiff Asma Elidrissi is a Connecticut resident with two children subject to P.A. 21-6's vaccination requirement. (Id. ¶ 36.) One child "has not fully completed registration for kindergarten" and the other "will be eligible for preschool in the fall of 2021." (Id. ) Plaintiff Elidrissi is Muslim and alleges three religious objections to vaccines. (Id. ¶ 37.) First, she believes that vaccines constitute participation in murder because vaccines contain "aborted fetal cells." (Id. ¶ 38.) Next, she alleges that there are pork derivatives in vaccines, and she abstains from pork as a part of her religion. (Id. ¶ 39.) Finally, she does not harm children on religious and moral grounds and alleges that vaccines harm children. (Id. ¶ 40.) Plaintiff Elidrissi also states that after her son was given the measles, mumps, and rubella vaccination, he "suffer[ed] serious symptoms and ultimately a speech and learning disorder for which he now receives special services." (Id. )

This case is brought against six defendants: three state agencies and three local boards of education. Defendants Connecticut Office of Early Childhood Development, Connecticut State Department of Education, and Connecticut...