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

organized belief.

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.