[00:00:00] Speaker 01:
The United States Court of Appeals for the Ninth Circuit

[00:00:07] Speaker 02:
Good morning, ladies and gentlemen. Judges Paez and Bumate and I welcome you to the Ninth Circuit. We have a number of matters on for argument today, and we also have several matters that have been submitted on the briefs. I'm going to call the submitted matters first just to get those handled, and then we'll go to the argument matters, and I'll come back and talk a little bit more.

[00:00:31] Speaker 02:
The first submitted matter is Eric...

[00:00:34] Speaker 02:
Tuto Sanchez v. Todd Blanch, 17-73325, submitted on the briefs, will be submitted as of this date. The next submitted matter is Nelda Esmeralda Pena Portillo, Darlene Elizabeth Portillo Pena.

[00:00:52] Speaker 02:
versus Todd Blanch, 1-8-70315, submitted on the brief, submitted as of this date. And the last submitted matter is Paulo Ricardo Nunez dos Santos versus Todd Blanch, 25-5284, submitted on the brief, submitted as of this date. Now, if you're here on an argued matter, you have a time designation by your case. If you are the appellant, that time designation includes that's your total amount of time.

[00:01:25] Speaker 02:
So any time you wish to reserve for rebuttal comes out of that time.

[00:01:30] Speaker 02:
I know that we do have one matter where people are sharing time.

[00:01:36] Speaker 02:
And so if you are sharing time, it's designated on the calendar there.

[00:01:45] Speaker 02:
And those people that are sharing time are appellees, so we don't have to worry about rebuttal time.

[00:01:53] Speaker 02:
Obviously, I know that you all came here to say certain things, and I hope you get to say them, but you also have to understand we have to decide your cases, so the judges are going to have questions of you. And so when the time has run out, if any of my colleagues or I are asking you questions, you don't need to ask permission. Please continue to ask questions. answer questions as long as the court has any questions of you.

[00:02:18] Speaker 02:
If you are responsible for keeping track of your time, the clock counts down and then it goes up. It doesn't really mean I gave you extra time. It means you've moved into overtime. And I will generally keep people to the time allotment unless my colleagues have any questions. If you are the appellant and you aspirationally would like to reserve any time for rebuttal, it's your responsibility to keep track of the time. But if you tell me how much time you'd like to save, I am looking at a clock, and I will try to remind you of that.

[00:02:52] Speaker 02:
The first matter on for argument is Sarah Royce et al. versus Rob Bonta. We do have the appellant's lawyer is here remotely. I can see you fine. Can you hear us okay?

[00:03:08] Speaker 00:
Yes.

[00:03:09] Speaker 02:
All right. Can you hear okay over at appellee's table? All right. Great. That's 25-2504.

[00:03:19] Speaker 02:
Each side has 10 minutes in this matter. So we're ready to proceed and we're ready to start with the appellant.

[00:03:29] Speaker 01:
Thank you. May it please the court, Erin Mercino on behalf of four California mothers, Sarah Royce, Sarah Clark, Tiffany Brown, and Christy Caraway. May I reserve two minutes for rebuttal?

[00:03:43] Speaker 02:
Hopefully. Go ahead.

[00:03:45] Speaker 01:
Thank you. SB 277 presents appellants with the untenable choice to violate their sincerely held religious beliefs or deny public and private schooling to their children. The lower court erred in dismissing appellant's complaint because it applied rational basis review instead of strict scrutiny. Strict scrutiny applies here for at least three reasons that I'd like to address today. First, that it lacks general applicability under Fulton.

[00:04:15] Speaker 01:
It misapplied the comparator analysis under Tandon. And strict scrutiny applies because of recent Supreme Court precedent in Mahmoud v. Taylor, Miller v. McDonald, and Mirabelli v. Bonta.

[00:04:30] Speaker 01:
WHICH CONFIRM THAT WHEN THE STATE BURDENS PARENTAL RELIGIOUS RIGHTS CONCERNING THEIR CHILDREN'S UPBRINGING, EDUCATION, AND MEDICAL DECISIONS, THAT STRICT SCRUTINY APPLIES. WE ASK THAT THE COURT REVERSE THE DECISION OF THE DISTRICT COURT WITH INSTRUCTIONS TO APPLY STRICT SCRUTINY OR ENTER JUDGMENT.

[00:04:47] Speaker 04:
COUNCIL, DID YOU RAISE THE MOHAMMOUD ISSUE IN YOUR BRIEFING?

[00:04:52] Speaker 01:
So Mahmoud's application to vaccination cases occurred when the Supreme Court issued the GVR in Miller versus McDonald. And as soon as the Supreme Court issued that GVR, we filed a Rule 28J letter preserving that argument, yes.

[00:05:11] Speaker 04:
Well, was Mahmoud decided before the briefing and this before us?

[00:05:16] Speaker 01:
Mahmoud was, but its application to these vaccination cases had not occurred until Miller versus McDonald.

[00:05:23] Speaker 03:
You didn't see an argument there after Mahmoud came out?

[00:05:28] Speaker 01:
Well, I certainly saw it very clearly after the Supreme Court issued the- No, no, no.

[00:05:33] Speaker 03:
I said after Mahmoud came out.

[00:05:35] Speaker 01:
So at that point, there was the cert petition that was arguing, but it wasn't settled.

[00:05:41] Speaker 03:
But you didn't think you could raise it in your brief here?

[00:05:45] Speaker 01:
Well, it would be a decision that the Supreme Court would have to correct for itself.

[00:05:49] Speaker 03:
That's not my question.

[00:05:53] Speaker 01:
So I think that it became very clear that it would apply to vaccination cases when the Supreme Court issued its GVR. And so at that point, there is comfort in raising that argument.

[00:06:04] Speaker 02:
So the district court didn't consider Mahmood, correct? Obviously.

[00:06:09] Speaker 01:
The district court did not because it was not decided yet.

[00:06:16] Speaker 04:
So can you go into your Fulton argument?

[00:06:20] Speaker 04:
As I read the regs, it seems like there's a discretion to deny a medical exemption, right, not to grant a medical exemption.

[00:06:32] Speaker 01:
Yes. So there's several exemptions under Fulton. So as you know, a law is not generally applicable when there is this mechanism that even allows for these individualized exemptions.

[00:06:46] Speaker 04:
But in Fulton, it seemed like the exception was the ability to grant the adoption, a discretionary exemption.

[00:06:55] Speaker 01:
exception to grant the adoption where here it's it's a discretionary to deny the medical exemption well so it's interesting because in fulton they the holding says okay individualized mechanism but the next thing that the court says is that for example And it goes into, okay, in that case, obviously the employee was denied carte blanche, any sort of religious exemption to finding work on Saturdays.

[00:07:31] Speaker 01:
So it went into an example of more of a categorical exemption based on kind of a religious exemption.

[00:07:40] Speaker 01:
categorical test. So a religious exemption wasn't good enough to meet the good cause standard in Sherbert. So I don't think, I think that some cases have kind of misconstrued it, saying that it's up to the sole decision maker and But when you put together Fulton and put together Tandon, if there are those different comparisons and there are a different scheme of exemptions, then you can't treat the religious exemption worse than the secular exemptions.

[00:08:12] Speaker 04:
I understand that, but I'm just trying to understand how the medical exemption, the discretion to deny medical exemption, is like the exemption in Fulton. It's like the opposite almost. In Fulton, it's a discretion to grant a benefit, where here it's like a discretion to deny the benefit.

[00:08:32] Speaker 01:
Yes, I mean, it is kind of different in the construct, right? So I definitely see what you're saying. Right.

[00:08:40] Speaker 01:
But it still is a case-by-case individualized exemption between the person who is applying for the exemption. They have to go to their physician. It's based on family history and a number of different individualized factors. And the fact that it exists, a secular exemption exists,

[00:08:59] Speaker 02:
exists at all i think is really important to the analysis and that's not the only exemption um there's a multitude of exemptions in sb 277 which is the closest to yours i mean not every ex obviously this is a a law that's trying to protect the public here and some other cases that we talk about are not protecting the public health in the same way does that matter

[00:09:25] Speaker 01:
So I think all of the exemptions pose the same risk to the state's asserted compelling interest because they are exemptions to SB 277.

[00:09:38] Speaker 02:
Well, how many more people that...

[00:09:41] Speaker 02:
Okay, so everyone that's not vaccinated is going to pose some sort of risk to people. So why – but what are you most comparative to? Because if you get a religious exemption, my understanding is then you would get it forever, so you would always be unvaccinated, right? And some of the other ones, it says, well, it's temporary or so –

[00:10:10] Speaker 01:
So I think maybe or maybe not. Someone could have a life event where they become an atheist or they could have a religious objection to the use of aborted fetal cells and the manufacturing of a vaccine. And then a vaccine comes out that does not use them at all.

[00:10:28] Speaker 01:
I don't know that it is permanent, but medical exemptions can be permanent. And I think just the multitude of all of the exemptions, the medical exemptions, the 30-day period, when first enrolling, the individualized study programs, the IEPs, all of the IEPs that are exempt and the high number, 11%, according to the California Department of Education's numbers of students could receive that exemption for their IEP services.

[00:10:57] Speaker 01:
All of the exemptions for immigrant students, foster care students, homeless students, students who are over the age of 18.

[00:11:04] Speaker 02:
Well, so hypothetically, hypothetically, if we were to agree with you, I'm not saying that we haven't.

[00:11:12] Speaker 02:
decided the case. So we're just having an argument here. So hypothetically, if we were to agree with you, the district court here did not apply strict scrutiny. Should we send it back? If we said strict scrutiny is the standard, should we send it back to the district court to apply?

[00:11:29] Speaker 01:
Yes, I think that... Or should we apply it? You could either... reverse and you could apply it or you could send it back.

[00:11:37] Speaker 02:
Well, I know what we can do. I'm asking you what, you're the advocate here. What are you saying we should do?

[00:11:44] Speaker 00:
I would like if you would apply strict scrutiny.

[00:11:49] Speaker 03:
I have one question for you. I know your time is running down, but maybe our presiding judge will give you some extra time. I will.

[00:12:00] Speaker 03:
So, you know, as I In looking at all the cases, it seems to me, at least with respect to medical exemptions, that the Second Circuit, the Third Circuit, the First Circuit, the Fourth Circuit, as well as a motions panel here at the Ninth Circuit have concluded, when they sort of looked at this issue regarding the medical exemptions, that medical exemptions aren't comparable to religious exemptions because they serve not undermine the state's interest in vaccination in schools and general public health.

[00:12:37] Speaker 03:
And you're asking us to sort of take a different approach. And I wanna know why, when we have all this case law out there.

[00:12:46] Speaker 01:
So Miller versus McDonald, Doster in the Sixth Circuit, Doe's one through 26 versus Biden in the Fifth Circuit. But also it's not been established in any way that applying the small number of religious exemptions would frustrate the state's compelling interest in any way. Here, the personal belief exemptions, this is in paragraph 35 of the complaint, were at the level of 2.5% when the law was changed to exclude all personal belief exemptions and religious exemptions.

[00:13:20] Speaker 01:
So the number of religious exemptions would be smaller than that. less are included within that umbrella of personal belief exemptions. And we can see from the CDC's data that when you look at states that allow both personal belief exemptions and religious exemptions versus states that only allow religious exemptions, it's far, far less.

[00:13:42] Speaker 03:
I may be wrong about this. And you can correct me, because you may know the record better than I do. But I think I read someplace in the briefs that just prior to the time the legislature enacted, removed the personal exemption from the statute, the number of religious exemptions had gone up quite substantially. Is that correct?

[00:14:11] Speaker 01:
Right before the law was enacted, they were actually on the way down.

[00:14:17] Speaker 03:
They hadn't gone up at all?

[00:14:20] Speaker 01:
No, the direction was going down.

[00:14:23] Speaker 03:
Here in California?

[00:14:25] Speaker 01:
Here in California.

[00:14:26] Speaker 03:
I think medical exemptions went up. That's what I meant, medical exemption. I thought they went up.

[00:14:34] Speaker 01:
For medical exemptions.

[00:14:36] Speaker 03:
Okay, I may be confused. So you know it better than I do.

[00:14:40] Speaker 01:
Oh, no, but just looking at, you know, if the state opens the door with one exemption and then opens it even further, and then here they're opening it so wide to include 11% of the students with the IEP exemptions. They've opened it so wide, but yet they can't open it. Just the tiniest crack for these four parents. Yeah, go ahead.

[00:15:02] Speaker 04:
Can I ask, can you explain the independent study exemption and how that is a proper comparator?

[00:15:10] Speaker 01:
Sure.

[00:15:12] Speaker 04:
That's conceptually the hardest to wrap your head around because the students are at home, right, not at school.

[00:15:18] Speaker 01:
Yes, but they can go to school for certain purposes and they can participate in extracurricular activities and sports. So they can wrestle with someone and be unvaccinated while doing that in close proximity.

[00:15:30] Speaker 04:
Was the state's interest in vaccinating students at school or was it an interest in vaccinating all children?

[00:15:42] Speaker 01:
Excuse me. I believe they can probably answer it better, but it seems that their stated interest is that they wanted children to be vaccinated across the board and they wanted to achieve herd immunity.

[00:15:53] Speaker 04:
Because the reason was of the Disney incident, right?

[00:15:57] Speaker 01:
Yes, but they didn't regulate theme parks.

[00:16:00] Speaker 04:
So it's all students, it's all kids, not students at school is the interest, right?

[00:16:06] Speaker 01:
Is the interest, but it's been under-inclusive and includes so many exemptions.

[00:16:11] Speaker 04:
Which is why the exemption for independent students, study students, makes less, is a proper comparator.

[00:16:20] Speaker 02:
Yes.

[00:16:22] Speaker 03:
But the law here is designed for students, correct? Isn't that the state's interest here, is obtaining immunity within?

[00:16:32] Speaker 01:
So it's within the schools is, I believe, to try to vaccinate all children. But then it includes so many.

[00:16:40] Speaker 03:
But if you look, but you have don't we have to look at that and see what the statute says. Otherwise, I mean, you know, we're this is all about the statute, correct?

[00:16:51] Speaker 01:
It is all about the statute, the construction of the statute and how it violates the First Amendment under Tandon and Fulton and that it doesn't pass strict scrutiny. But looking at I would say the different comparators and, you know, how that factors into the, the analysis. I think that certainly is one of the most important things in factoring into the analysis because they look at the purpose for why the, the exemption is being granted versus the risk that it could pose.

[00:17:26] Speaker 01:
And all of the exemptions pose the exact same risk and, um, So the state argues kind of more generalized, broader interests and say that that's the compelling interest. But of course, as we know in Fulton, the compelling interest has to be- Wasn't the state's stated compelling interest herd immunity?

[00:17:45] Speaker 04:
And so you wouldn't exclude some people from herd immunity. The whole point is to get everyone vaccinated, right?

[00:17:52] Speaker 01:
But 100% is not required for herd immunity either. And there hasn't been any showing of how many religious exemptions would actually be in place here. But we know that for these four individuals, the question is, is there a compelling interest for these four moms to vaccinate their children? And their children only make up 0.00017%.

[00:18:15] Speaker 02:
So you have 46 states have religious exceptions, right? And California used to.

[00:18:24] Speaker 02:
Does that matter at all? Does that matter at all? Or if it does, how does that factor in?

[00:18:36] Speaker 01:
I think it can give solace that the sky won't fall if a small religious minority is allowed to have a religious exception in accordance with the First Amendment. And you can look at the numbers of the other states and the small numbers of religious exemptions that are taken advantage of throughout the states, and that it has not had this sort of disastrous effect on preventing communicable disease, as the state is arguing.

[00:19:07] Speaker 02:
What would the state have to show to meet strict scrutiny? I'm assuming that they could in certain instances. Is that correct? Or do you concede that?

[00:19:18] Speaker 02:
Are you saying are we trading or would be creating?

[00:19:24] Speaker 02:
I mean, there should be some instances where strict scrutiny could be satisfied, right? Or it wouldn't be a standard. It would be an ultimatum.

[00:19:37] Speaker 01:
The test exists for a reason, that they would have to meet the standard of compelling interest and narrowly tailored and least restrictive means, and they have not done that here.

[00:19:49] Speaker 02:
But can you give me an example of where you think that could happen? Would it depend on the type of disease?

[00:19:57] Speaker 02:
Does it matter what type of disease we're vaccinating against?

[00:20:01] Speaker 01:
Well, I think first and foremost, if you're looking at whether or not something would pass First Amendment scrutiny, the fact that there are all of these other exemptions, I think really hurts their statement that There's a compelling interest in specifically these four individuals. So I think instead of having a door wide open situation, it would be a door closed or almost completely closed.

[00:20:28] Speaker 01:
And the fit would have to be very tight. You'd have to show they studied, you know, quarantining. They studied masking. They studied social distancing. They studied all of these other ways to stop communicable disease. And they all failed. And there's a factual record of them failing.

[00:20:46] Speaker 02:
All right. We've taken you over, obviously, and I'm sure we'll take the other side over. So I'll probably give you two minutes for rebuttal. All right. Thank you.

[00:20:58] Speaker 01:
Thank you.

[00:20:59] Speaker 02:
We'll hear from the state.

[00:21:05] Speaker 05:
Good morning, and may it please the court. Andra Lim for Dr. Erica Pond.

[00:21:08] Speaker 02:
Morning.

[00:21:09] Speaker 05:
I'd like to address the issue of the state's interest, but before that, I would just like to offer a few preliminary thoughts. California's law has long been a cornerstone of the state's public health and safety regulation. For the millions of students in our state, the law ensures that when they go to school, they're protected from diseases that can have serious health consequences and even cause death.

[00:21:27] Speaker 02:
Every court of appeal that is considered a free exercise challenge to a similar school immunization law, including this court in Doe, and most recently... But 46 other states are getting by just fine without eliminating a religious exception, and you are giving other exceptions, and you used to have that religious exception. So is the sky really falling now?

[00:21:46] Speaker 05:
Two points on that, Your Honor. First, as to the other 46 states, I don't believe there's data on that in the record, but there is publicly available data from the CDC showing that California has by far the largest population, yet the number of measles cases in California is similar to those in much, much smaller states that do have a religious exemption. So I'm not sure it's accurate to say that there are no problems in those other states. Second, I think California's specific experience showed that it needed to repeal the personal beliefs exemption in its entirety. Before the passage of SB 277, the rate of PDEs, personal beliefs exemptions, had increased by 337%.

[00:22:20] Speaker 05:
Is that what I read someplace in the briefs? The 337%, yes, that is in the briefs.

[00:22:28] Speaker 02:
So what your friend on the other side just said, that's not what she just said. So tell me how both of those can be true or not true.

[00:22:37] Speaker 05:
So I think overall, when you look at the span from 2000 to 2012, there was a significant increase in PBEs overall. I think there may have been a slight decrease from one year to the next, but overall, the overall trend was this huge, huge increase.

[00:22:49] Speaker 04:
Why do you have to get rid of everything? Why couldn't you just get rid of the personal belief exception but keep the free exercise exemption?

[00:22:58] Speaker 05:
So what the legislative history reflects is that in some communities in California, the rate of unvaccinated students was really, really high, 21%.

[00:23:04] Speaker 04:
What communities were those?

[00:23:06] Speaker 05:
I'm not sure. It's not mentioned in the legislative history.

[00:23:10] Speaker 05:
The legislative history does, though, refer to 21%.

[00:23:11] Speaker 04:
So are we supposed to credit that if we don't even know what they're talking about?

[00:23:17] Speaker 05:
Well, I mean, I do think that what is in the legislative history, there's no... But we don't even know what they're talking about.

[00:23:23] Speaker 04:
You don't even know what community they're talking about.

[00:23:25] Speaker 05:
I mean, I do think we know that there are... what the history says, that there were communities with those numbers and that there was this measles outbreak in California.

[00:23:32] Speaker 04:
How does that pass any rational basis if we don't even know what community they're talking about?

[00:23:36] Speaker 05:
Well, I think rational basis is a very deferential standard.

[00:23:39] Speaker 04:
Yeah, but you have to explain where you're getting your facts. You can't even explain what community you're talking about.

[00:23:46] Speaker 05:
Well, I do think one thing that is in the legislative history is about the measles outbreak that happened in Southern California.

[00:23:51] Speaker 04:
Right. Okay, so move on to that.

[00:23:53] Speaker 05:
That the legislative history explains was caused in large part due to the large number of unvaccinated students. Sorry?

[00:24:00] Speaker 04:
At Disney.

[00:24:01] Speaker 05:
At Disneyland, yes.

[00:24:03] Speaker 05:
I think the state's interest here, if I could return to that point. So I think there are two state interests here, and then there's sort of a downstream effect of those interests. So the two state interests here, one, it's achieving and maintaining herd immunity within schools. And then second, protecting- Within schools? Yes, it's on page 257 of the Grimsby excerpts of record. It talks about how the legislature wanted to ensure safe schools, safe school campuses.

[00:24:24] Speaker 04:
Isn't there a certain purpose in the legislation itself?

[00:24:30] Speaker 05:
I mean, I think with the legislation... 12035... Wait, 325A?

[00:24:34] Speaker 04:
I'm sorry. Doesn't it say that it means for eventual achievement of total immunization of appropriate age groups against certain childhood diseases?

[00:24:44] Speaker 05:
So I think the total immunization language was not added in SB 277. That language has been there since at least 1995. And so it was in effect the entire time. It was in effect before SB 277, and it was in effect in a time when the personal beliefs exemption was in effect. And so I don't think it's possible to read that language as saying the legislature wanted every single student, every single child to be immunized because that language was in effect again when this personal beliefs exemption was in effect.

[00:25:10] Speaker 04:
So we should disregard that legislative purpose?

[00:25:13] Speaker 05:
Well, I think just given the context I was just describing, I think that total immunization is best read as referring either to A, herd immunity, or B, that students covered by the law must be totally immunized against all 10 diseases that are listed in the law. And I would say that the total immunization question, that's really a question of California state law. Under California law, the Supreme Court has emphasized the need to give statutes of practical, workable construction. I think the practical construction is not that it was referring to immunization of every single student.

[00:25:43] Speaker 05:
or every single child.

[00:25:45] Speaker 02:
So I'm having a hard time understanding why some of the people that you're allowed not to be immunized for maybe 30 days or people that have IEPs or whatever, why they get that exception and someone that's protected by the First Amendment doesn't get off first base.

[00:26:12] Speaker 05:
Well, I think what matters here is that comparability is adjudged with reference to the asserted state interest, which, again, are herd immunity within schools and protecting the health and safety of individual students. So with the conditional enrollment provision, it's just providing this temporary grace student for students to get vaccinated. And so that does ultimately further the state's goals in achieving herd immunity.

[00:26:32] Speaker 02:
But if they come for 30 days and they've got, you know, all sorts of diseases, they can do a pretty good job in 30 days, right?

[00:26:40] Speaker 05:
Well, what the legislative history discusses is how herd immunity depends on there not being large numbers of students over time who don't get vaccinated. I don't think that a 30-day period affects herd immunity in the same way as giving someone a religious exemption that could potentially be permanent for years.

[00:26:57] Speaker 02:
I don't think, but what are you basing that on? Is it more than a thought?

[00:27:03] Speaker 05:
Well, the conditional enrollment provision is temporary. A religious exemption is often permanent. And so those two things are different when it comes to the state's interest in achieving and maintaining herd immunity. They're also different when it comes to the state's interest in protecting the individual child. The student with a conditional enrollment does ultimately get vaccinated and is protected.

[00:27:21] Speaker 04:
But why do you have to let them in? Why can't you just mandate that they provide the immunization before they get into the school? And then it better serves the interest in herd immunity within schools if that's the interest.

[00:27:33] Speaker 05:
Two points on that, Your Honor. First, what the law actually says is that this provision is for students who are missing immunization records. And so it's not the case that all the students to whom these provisions apply actually lack the required immunization. For some of them, it's a matter of missing paperwork.

[00:27:49] Speaker 04:
My question is, why don't you demand the paperwork before they get to schools? Because that better serves the interest.

[00:27:55] Speaker 05:
Well, I think we disagree with the premise that it is comparable with respect to the interest as a religious exemption.

[00:28:05] Speaker 04:
That's not my point. The interest is if the person is, you don't know whether the student is immunized or not, right? And you're letting them in the schools for at least 30 days, why not exclude them from schools before they enter so then the risk of them spreading diseases is zero, right?

[00:28:24] Speaker 05:
But I think the free exercise question, Your Honor, is just are they comparable?

[00:28:26] Speaker 04:
That's not my question. I'm asking about these students. Why not exclude them first?

[00:28:33] Speaker 05:
So I will say for a couple categories of students, I think for one category of students, it is a federal law requirement that also discusses this, and then there's also the military.

[00:28:41] Speaker 04:
No, you're talking about IEP. That's something different, right? Or you're talking about conditional students. Yes. I just don't understand how that serves even rational basis that you're letting them in even though you don't know if they're immunized or not, even if it's only temporary.

[00:28:55] Speaker 05:
I mean, the rational basis review is a fairly deferential standard of review.

[00:28:58] Speaker 04:
I understand, but what's the reason? You have to give me a reason.

[00:29:00] Speaker 05:
I think the reason is that some of these categories of students are missing records, and the law allows them to be enrolled for a very short period of time until they can get their records or get immunized. But why? I mean, I think the idea is that they shouldn't be excluded from, you know, they should be allowed to attend school and quickly come into compliance.

[00:29:22] Speaker 04:
Why should they get that right and not religious students?

[00:29:26] Speaker 05:
Well, I think the right that the plaintiffs are seeking is different. They're not seeking a 30-day period. They're seeking a permanent religious exemption. And so I think the two are really distinguishable.

[00:29:35] Speaker 04:
But you have to admit, though, letting students where you have no immunization record into school for even a temporary amount of time is a big risk, right? It risks spreading of diseases.

[00:29:47] Speaker 05:
There is a risk, but I don't think it's the risk the legislature was concerned about. The legislature was concerned about the herd immunity.

[00:29:52] Speaker 02:
The risk that the statute's willing to take And you mentioned federal statutes. So when you have federal statutes, you're saying, okay, well, that means we should take the risk. And the religious liberty people say, well, we have the First Amendment. We have the Constitution. So are statutes or the Constitution more important?

[00:30:13] Speaker 05:
So if your honor is referring to the IEP provision, I think that what Judge Okuda said in her dissent in the Doe case, which the majority there agreed with, is absolutely correct. All the IEP provision is doing is recognizing a federal limitation on California's ability to regulate. And because of that, unvaccinated IEP students, what she said is they just don't factor into the general applicability analysis. We just don't consider that population when looking at whether the law is generally applicable. And again, that's what her dissent said, and the majority agreed with that. We think that's absolutely correct.

[00:30:43] Speaker 05:
The purpose of the comparability analysis is to figure out whether the state has passed a law that's differentially treating secular and religious conduct that is similarly situated. The purpose is to figure out whether the law is discriminating against religiously motivated conduct. And recognition of a federal law limitation on California's ability to regulate just can't reflect any sort of discrimination by California against religion, any decision by California to favor secular conduct.

[00:31:08] Speaker 02:
So if, hypothetically, if we were to decide that strict scrutiny applies, can you meet that here on this record?

[00:31:17] Speaker 05:
We think we can meet strict scrutiny here on this record. Tell me how.

[00:31:22] Speaker 05:
Again, it goes back to just the fact that there were really, really high rates of unvaccinated individuals in certain communities and that repealing the entire personal beliefs exemption was necessary to bring those levels down to the herd immunity threshold.

[00:31:36] Speaker 05:
I think the measles outbreak that occurred is also important here because it shows the stakes of not achieving herd immunity.

[00:31:40] Speaker 02:
Are these high rates of unvaccinated people, are they attributed to religious, exercising their religious rights, or is it just there's just a lot of unvaccinated people?

[00:31:55] Speaker 05:
Well, what the legislative history reflects is that there was a gigantic increase in personal beliefs exemptions, which would have included both people with religious beliefs and people with other philosophical objections to vaccines.

[00:32:07] Speaker 04:
So, I mean, can we go back to you? You started saying, and the reason why they didn't eliminate just the personal belief and keep the religious is because there's some communities that there are higher rates of diseases, right?

[00:32:19] Speaker 05:
There are some communities with higher rates of unvaccinated people.

[00:32:21] Speaker 04:
So are we to presume that those are religious communities? Because that was your explanation.

[00:32:26] Speaker 05:
Well, I think when you pair the very high number of unvaccinated people with the fact that personal beliefs exemptions had really, really increased, the way to solve that is by eliminating the personal beliefs exemption.

[00:32:36] Speaker 04:
No, but that makes no sense because you could get rid of personal belief exception and keep the religious exemption, correct?

[00:32:43] Speaker 05:
I think that would have theoretically been possible, but I think the numbers are high enough.

[00:32:46] Speaker 04:
And then the reason why you say they didn't do that is because there are some communities that had high rates of infection. And so presumably you mean religious communities.

[00:32:55] Speaker 05:
Well, the outbreak that the legislative history refers to is the Disneyland measles outbreak.

[00:33:00] Speaker 04:
But which communities were they referring to?

[00:33:03] Speaker 05:
The 21%, the legislative history doesn't specify.

[00:33:07] Speaker 04:
Can we infer that they're religious communities? Because that's why you explained why you got rid of personal beliefs. Because you could theoretically get rid of personal beliefs but you can keep religious. And the reason why you said they didn't do that is because there's some communities that have higher rates of infection, right? So presumably you mean that religious communities have higher rates of infections. Yes.

[00:33:29] Speaker 05:
I mean, as our brief does discuss, in states that do have data on religious exemptions versus medical exemptions, the rate of religious exemptions is a lot higher.

[00:33:38] Speaker 04:
And we have data from other states right now that have- Is there a higher rates of infection among those with religious exemptions?

[00:33:44] Speaker 05:
Well, as I mentioned before, there is recent data from the CDC about measles cases. California has a much, much larger population. has the same number or similar number of measles outbreaks as states that are much, much smaller but do have a religious convention in place.

[00:33:57] Speaker 04:
I need you to answer the question, though. Are those with higher rates, are they religious communities?

[00:34:02] Speaker 05:
The legislative history doesn't discuss that. I will say, Your Honor, that if the court has doubts about strict scrutiny, we would at least ask that you remand and give us a chance to develop a factual record on strict scrutiny. It would be possible, for instance, for us to try and develop a factual record on some of the questions that the court has had.

[00:34:18] Speaker 04:
I think it's very possible you could meet strict scrutiny, but...

[00:34:22] Speaker 04:
Anyway, but it should be strict scrutiny.

[00:34:24] Speaker 03:
But your point is that strict scrutiny is not required, right?

[00:34:27] Speaker 05:
Yes, we believe the law is neutral and generally applicable and satisfies rational basis review, and we also believe that there's no reason to apply strict scrutiny under Mamou and Mirabelli or Yoder.

[00:34:37] Speaker 05:
I will just note on the point that my friend on the other side made about the Miller case, that was just a GVR by the Supreme Court. The Supreme Court has been clear that a GVR just means that there's a possibility that its precedent could affect the case. It doesn't mean that it in fact does.

[00:34:51] Speaker 02:
Do you think Mahmood has any applicability here?

[00:34:55] Speaker 05:
So we think that Mahmood is distinguishable for the reasons that Judge Wilkinson laid out in his Perry opinion. First, Mahmood was not a case about a public health measure and It drew heavily from the Yoder case, which emphasized that the law there did not go to physical health or safety of the child or the community. We think Mahmoud is also distinguishable because the policies there were about ideological indoctrination. The school immunization law doesn't involve any sort of ideological indoctrination. And then third, as Judge Wilkinson explained, the Supreme Court has said in Prince versus Massachusetts that a parent can't claim freedom from compulsory immunization for her child on religious grounds.

[00:35:35] Speaker 05:
And we think that dicta is on point. Nothing has disturbed it, and so it should be followed here.

[00:35:39] Speaker 04:
But you agree that Mahmoud is applicable to vaccine cases, though, based off of Miller?

[00:35:46] Speaker 05:
No, I don't think that's what Miller says. I think Miller says that there's a possibility that Mahmoud could affect, you know, the reasoning of that case or the outcome of that case, but it doesn't say that for sure.

[00:35:56] Speaker 05:
And so the Second Circuit is considering that now.

[00:36:00] Speaker 02:
We don't have any additional questions, but if you want to take a minute to wrap up, That's fine.

[00:36:06] Speaker 05:
Yes, that would be great.

[00:36:10] Speaker 05:
This is a law that has long been in effect. It addresses diseases that are really, really serious. Vaccines have proven to be safe, effective, and life-saving. Some of the vaccines required by this law are some of the most effective in history. Cases of polio are exceedingly rare over the last 50 years. The Supreme Court has repeatedly stated in its cases, not just in Prince, but also in the Smith case, that compulsory immunization laws are not subject to strict scrutiny. Um, so we believe that rational basis applies and we believe that the law easily satisfies rational basis and courts have repeatedly, repeatedly held that immunization laws do satisfy the rational basis test.

[00:36:48] Speaker 02:
Does it matter what the disease is? Obviously, I don't know that I'm, I'm just sort of reacting viscerally here that obviously polio is like super serious as opposed to, uh, You're dealing with some people here, not the younger probably, but some of us here that have had every measles, mumps, you know, the whole. And the way people dealt with this, that they put everyone together so that we all got it at the same time, and people weren't really necessarily dying.

[00:37:24] Speaker 02:
I'm not against vaccines, but could it, does it make a difference what you want people to vaccinate against? Does it matter the severity of it? I mean, there could be some vaccines that aren't, you know, causing that, you know, they aren't preventing the same bad things as others are. Does it matter?

[00:37:45] Speaker 05:
Under rational basis review, I am not sure that it would matter. Under strict scrutiny review, I guess it's conceivable to imagine a situation where a state says its only interest is herd immunity and the herd immunity threshold is somehow exceedingly, exceedingly low. Maybe that would make a difference, but that's just not the case that we have here today. The herd immunity threshold for the diseases targeted by this law is is high for all of them. And so, you know, in this case, I don't think it matters. I don't think that there's a basis for carving up the different diseases targeted by this particular law.

[00:38:18] Speaker 02:
Okay. Thank you for your argument.

[00:38:20] Speaker 01:
Thank you.

[00:38:21] Speaker 02:
I'll give the appellant two minutes for rebuttal.

[00:38:25] Speaker 01:
Thank you, Your Honor.

[00:38:27] Speaker 01:
The reality is that the appellant children are allowed to go everywhere with the children who can be in school. They can participate in extracurricular activities, go to movie theaters, go to theme parks, but they are banned from the schoolhouse. They can't receive an education like the other kids. And California has not established any good reason for such an extreme law. The 2.5% of schoolchildren who had personal belief exemptions does not reflect what the actual number of religious exemptions might be.

[00:39:01] Speaker 01:
And there's been no factual indications whatsoever in the record that there's been even an attempt for California to look at that number. Instead, they took the step. They knew that they were taking it to ban any religious exemption. They heard testimony that it violated the First Amendment. They received information from the ACLU at that time, and yet they still enacted the law. Looking at Miller versus McDonald, in that case, the Second Circuit applied rational basis. The Supreme Court vacated that decision and said in light of Mahmoud versus Taylor, you need to apply Mahmoud versus Taylor, which is very clear that when the state burdens schools, public education, when the state burdens religious exercise, that strict scrutiny applies.

[00:39:51] Speaker 01:
It applied Yoder and it applied the carve out in Smith that said that rational basis review does not apply to these sorts of cases. So the First Amendment does not permit California to condition the fundamental right of education on the surrender of sincerely held religious beliefs while granting secular exemptions that undermine the very same interest. Strict scrutiny must apply here. SB 77 fails it, and the district court judgment should be reversed, and at minimum, it should be vacated and remanded with instructions to apply Mahmoud v. Taylor.

[00:40:28] Speaker 01:
Thank you so much for your time. Thank you.

[00:40:30] Speaker 02:
Any additional questions by the panel? Alright, this matter will stand submitted.