Four mothers turned to a Ninth Circuit panel Friday to reinstate their lawsuit challenging California’s prohibition on religious exemptions to the state’s requirement that children need to be vaccinated against a slew of childhood diseases to attend school

Erin Mersino, an attorney representing the mothers, argued that the trial judge who dismissed their lawsuit last year should have applied a more demanding test to evaluate the California statute — strict scrutiny rather than rational basis review — because it infringes on their right to freedom of religion expression under the First Amendment

“Recent Supreme Court precedent confirms that, when a state burdens parental religious rights concerning their children’s upbringing, education and medical decisions, strict scrutiny applies,” Mersino told the three-judge appellate panel in Pasadena[…]
The Jane Doe case as well as an appeal in a third lawsuit where a judge denied a preliminary injunction that would have lifted California’s ban on religious exemptions were also argued before the Ninth Circuit panel on Friday. The plaintiffs sued because their religious beliefs don’t permit vaccinating their children

Until 2016, California had allowed personal belief exemptions to its vaccination requirement for school children[…]2015 so-called Disneyland measles outbreak in Southern California prompted state lawmakers to scrap those exemptions[…]
While the panel didn’t tip their hand whether they were inclined to send the mothers’ lawsuit back to the trial judge, or go as far as to apply strict scrutiny to the statute themselves, they asked some pointed questions of state’s attorney regarding the exemptions that are allowed — and the fact that 46 states permit religious exemptions to their vaccination requirements

“Forty-six other states are getting by just fine without eliminating a religious exemption,” observed U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee. “Is the sky really falling now?”