THE COURT: Joseph Rotella, Heyde Rotella, and Meja
Leibovitz bring this application for a preliminary injunction
enjoining the Board of Education of the City of New York,
Community School District 22 and Community School District 27
from excluding their children respectively, Katherine Rotella
and Jasmine Leibovitz, from attending school.
On January 24th, 2001, this Court denied the
application for a temporary restraining order but expedited
the preliminary injunction hearing which was held on January
25th and January 26th. For the following reasons, the
application for preliminary injunctions are granted:
To prevail on an application for preliminary
injunction, petitioner must show, one, irreparable harm
without the relief and two, either A, a likelihood of success
on the merits or B, a sufficiently serious question on the
merits to make them fair ground for litigation, and a balance
of hardships tipping decidedly in favor of the movants. A
preliminary injunction is an extraordinary form of relief
which is subject to the Court's discretion.
The trend of the Supreme Court and the courts in
this circuit has been to find irreparable harm whenever the
First Amendment is implicated. Furthermore, the gravity of
harm alleged by plaintiffs is exacerbated by the factual
consequences of their situation. Defendants refuse to admit
the children to their schools, the children have been absent
from class for several weeks and without temporary relief
will continue to miss class until their claims are
adjudicated. If there is not already the distinct
possibility that the children may be held back to repeat a
year of schooling, there may well be such a penalty before a
final decision in this case is rendered. Plaintiffs have
made a substantial showing that they will suffer irreparable
harm without the relief they seek and defendants have not
advanced an argument in opposition.
Accordingly, plaintiffs have satisfied this prong
of the preliminary injunction requirement.
The second prong involves an analysis of the merits
of plaintiffs' claims, that they have been improperly denied
religious exemptions. The New York Public Health Law,
Section 2164 requires public school students to have
immunizations for communicable diseases such as polio,
measles and hepatitis. Students who do not receive the
immunizations are excluded from school attendance. New York
has created an exemption for those whose religious views
conflict with immunization. "This section shall not apply to
children whose parents or guardian hold genuine and sincere
religious beliefs which are contrary to the practices herein
required and no certificate shall be required as a
prerequisite to such children being admitted or received into
school or attending school."
The inquiry into whether a person's beliefs entitle
her to an exemption under 2164 subsection 9 is two-fold.
First, the beliefs in opposition to the immunization must be
religious in nature. Second, the beliefs must be genuinely
and sincerely held.
The exemption in 2164 subsection 9 applies only to
religious beliefs in opposition to immunizations. It does
not extend to views founded upon purely moral and ethical
considerations, scientific and secular theories or
philosophical and personal beliefs. The Court must be wary
of personal opposition to immunizations borrowing religious
tenets from other sources when those religious beliefs are
not personally held. The beliefs may not be independently
credible, consistent or aligned with any particular dogma.
The beliefs need only be based in religion.
The Court of the United States has commented on the
scope of First Amendment protection of religious beliefs, "to
test a belief in relation to a supreme being is whether a
given belief that is sincere and meaningful occupies a place
in a life of its possessor parallel to that filled by the
orthodox belief in God." United States v. Seeger, 380 U.S.
163 at 156-66, 1965 case. This definition is expansive and
is not constrained to traditional or established notions of
Plaintiffs' beliefs against vaccinations are
clearly religious in nature. Mr. Rotella testified that he
believes the human body is a temple of God. He believes God
made the human body and the human immune system to be
complete without the introduction of artificial medications.
Both he and Meja Leibovitz have sworn under oath that they
believe that vaccinations are an indication of faithlessness
in God and God's ability to protect. They believe
vaccination to be a sin.