Legislative hearing in 2019 on the same topic. (CTNewsjunkie file photo)

The Connecticut Supreme Court last week inserted itself into the debate over whether Connecticut made the right decision in eliminating the religious exemption for childhood vaccines back in April 2021.

At the heart of the debate is whether a Stamford Superior Court judge was correct in overruling a governmental immunity defense while examining the 2021 repeal of the religious exemption. Judge Robert Genuario did not grant the state’s request to dismiss the lawsuit, deducing that the constitutional claims made by parents Keira Spillane and Anna Kehle were exceptions to the sovereign immunity defense.

He found that the governmental immunity defense exception, outlined in the state’s 1993 religious freedom law, was applicable to the constitutional claims of Spillane and Kehle.

It’s the first time the law, which has been upheld by federal courts, is being challenged using Connecticut’s Religious Freedom Restoration Act.

The underlying lawsuit says the repeal violates the Religious Freedom Restoration Act and the right to a free public education. Attorneys for the plaintiffs say Connecticut is one of 21 states with a Religious Freedom Restoration Act and the only state that sought to repeal the religious exemption. They say it requires a higher level of judicial scrutiny. 

New York, California, and Maine have also repealed religious exemption laws, but those states do not have a state RFRA law.

Attorney Lindy R. Urso contended that Judge Genuario’s decision regarding the two exceptions was accurate. Urso argued that allowing the lawsuit would enable the discovery of potential evidence indicating religious prejudice as the motivation behind the repeal. He further questioned the validity of the health rationales presented during the 2021 legislative debate, labeling them as “vague” and “pretextual.”

Countering these arguments, Assistant Attorney General Darren P. Cunningham posited that affirming Judge Genuario’s rulings could pave the way for “a giant loophole” enabling challenges to state laws based on alleged constitutional violations. Cunningham pointed to a recent 2-1 verdict by the 2nd U.S. Circuit Court of Appeals, which found no indication of religious hostility in the 2021 law’s formulation or its legislative background.

Since 1959, Connecticut law permitted both religious and medical exemptions from mandatory childhood vaccinations. However, the drive to abolish the religious exemption gained momentum in 2019 when a measles outbreak prompted the state’s health officials to reveal school-wise immunization rates. According to a 2021 report, there was a tripling of children in Connecticut claiming a religious exemption from 2008 to 2020.

The 2021 revision, however, allowed only a medical exemption, demanding a signed note from a medical professional asserting a child’s inability to receive a vaccine due to specific conditions. Moreover, students already enrolled in kindergarten through the 12th grade and possessing a religious exemption before April 28, 2021, were unaffected by this change. All other students, starting from September 1, 2022, had to comply with the updated immunization stipulations.

The Spillane and Kehle families initiated a lawsuit to restore the religious exemption. Their argument stems from their belief that the 2021 repeal infringes upon state and federal safeguards concerning the free exercise of religion. While their older children are safeguarded under the grandfather clause, their younger ones are not.

The General Assembly and Gov. Ned Lamont controversially revised the school vaccination law in 2021 to jettison the decades-long religious exemption for immunizations for certain childhood diseases, including measles, mumps and rubella. The repeal affected public and private schools, licensed child care centers, family day care homes and group homes.