Amicus Curiae Brief — Joseph Miller, et al., Petitioners v. James V. McDonald, Commissioner, New York State Department of Health, et al.

NO. 25-133

In the

Supreme Court of the United States

JOSEPH MILLER, ET AL.,

Petitioners,

v.

JAMES V. MCDONALD, COMMISSIONER,

NEW YORK STATE DEPARTMENT OF HEALTH, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL

IN SUPPORT OF PETITIONERS

Carmine G. Iaccarino

Counsel of Record

Bryan H. Beauman

Sturgill, Turner, Barker & Moloney, PLLC

333 W. Vine Street, Ste 1500

Lexington, KY 40507

(859) 255-8581

carmine@sturgillturner.com

September 2, 2025

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

IDENTITY AND INTEREST OF

THE AMICUS CURIAE ...................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I.

Yoder is not Nearly as Narrow as the

Second Circuit Held, and its Application

Requires that the Law Satisfy Heightened

Scrutiny ............................................................ 6

II. The Law is Neither Neutral nor Generally

Applicable and Must thus Satisfy Strict

Scrutiny ............................................................ 9

CONCLUSION.......................................................... 17

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Bowen v. Roy,

476 U.S. 693 (1986) ............................................. 5

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ....................................... 14

Cantwell v. State of Connecticut,

310 U.S. 296 (1940) ............................................. 4

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) .... 2, 4, 5, 10, 11, 15

Colo. Christian Univ. v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ......................... 16

Dr. A. v. Hochul,

142 S. Ct. 2569 (2022) ................................. 14, 16

Employment Division v. Smith,

494 U.S. 872 (1990) ................. 3, 9, 10, 11, 16, 17

Fulton v. Philadelphia,

593 U.S. 522 (2021) ......................... 2, 8, 9, 11, 16

Gillette v. United States,

401 U.S. 437 (1972) ............................................. 4

Janus v. Am. Fed’n of State, Cnty., & Mun.

Emps., Council 31, 585 U.S. 878 (2018) ........... 17

Mahmoud v. Taylor,

606 U.S. ___, 45 S. Ct. 2332 (2025) ........ 2, 6-9, 13

Masterpiece Cakeshop v. Colorado Civil Rights

Comm’n, 584 U.S. 617 (2018)...................... 15, 16

Pearson v. Callahan,

555 U.S. 223 (2009) ........................................... 17

iii

TABLE OF AUTHORITIES – Continued

Page

Roberts v. Neace,

958 F.3d 409 (6th Cir. 2020) ....................... 11, 14

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ............................................. 15

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ....................................... 15

Tandon v. Newsom,

593 U.S. 61 (2021) ......................................... 2, 15

Tinker v. Des Moines Indep. Cmty. School

Dist., 393 U.S. 503 (1969) ................................... 6

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ....................................... 8, 12

Wisconsin v. Yoder,

406 U.S. 205 (1972) ............................. 2, 6, 7, 8, 9

Zorach v. Clauson,

343 U.S. 306 (1952) ............................................. 4

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ............................... 4, 5, 6, 11, 12

U.S. Const. amend. XIV .............................................. 5

STATUTES

N.Y. Pub. Health Law § 2164 ..................................... 5

JUDICIAL RULES

Sup. Ct. R. 37.2 ........................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

iv

TABLE OF AUTHORITIES – Continued

Page

NEW KING JAMES VERSION BIBLE

Acts 4:17–18 ................................................................ 4

Acts 5:27–28 ................................................................ 4

Daniel 3:5–6 ................................................................ 3

Daniel 6 ....................................................................... 3

Exodus 5 ...................................................................... 4

James 1:22................................................................... 8

Mark 12:17 .................................................................. 3

OTHER AUTHORITIES

Assemblyman Jeffrey Dinowitz,

Assembly Update, Facebook (Mar. 19,

2019), https://tinyurl.com/yvkebum2 (last

accessed Aug. 25, 2025) ................................. 5, 16

George Washington,

1790 Letter to the Hebrew Congregation of

Newport................................................................ 5

N.Y. Senate Proceedings (June 13, 2019),

https://perma.cc/J4FA-PDC7 ........................ 5, 16

Synagogue Nat’l Hist. Site,

https://perma.cc/53NC-RTJ6............................... 5

VeggieTales | So Many Chocolate Bunnies! |

Standing Up To Peer Pressure,

YouTube (Feb. 29, 2024), https://www.

youtube.com/watch?v=KDcf7vmE06U ............... 4

1

IDENTITY AND INTEREST

OF THE AMICUS CURIAE1

ASSOCIATION OF C HRISTIAN S CHOOLS

INTERNATIONAL (ACSI or the Association) is a nonprofit association providing support services to 24,000

Christian schools in over 100 countries. The Association

directly serves over 5,300 member schools worldwide,

including 2,200 Christian preschools, elementary, and

secondary schools and 90 post-secondary institutions in

the United States; 160 Christian international schools;

and over 3,000 Christian global schools. Member schools

educate some 5.5 million children around the world.

The

ACSI accredits Protestant pre-K-12 schools, provides professional development and teacher certification, and offers member schools high-quality curricula,

student testing, and a wide range of student activities.

Association members advance the common good by

providing quality education and spiritual formation

to their students. ACSI relies on a vibrant Christian

faith that embraces every aspect of life. This gives ACSI

an interest in ensuring expansive religious freedom

with strong protection from government attempts to

restrict it.

1 Pursuant to Rule 37.6, no counsel for any party in this case

wrote any part of this amicus brief, and no person except amicus

contributed to the costs of its preparation. In addition, ACSI

timely notified the parties of its intent to file this brief under

Rule 37.2.

2

SUMMARY OF ARGUMENT

For more than fifty years, New York respected both

medical and religious objections to school vaccination

requirements. In 2019, however, the legislature repealed

the religious exemption—dismissing faith-based objections as “utter garbage” and “fake,” while preserving

medical exemptions. That choice violates the Free

Exercise Clause. The Constitution forbids the State from

elevating secular judgment over religious conviction.

If medical exemptions may override the State’s asserted

interest in uniform vaccination, then comparable religious exemptions cannot be denied.

The Second Circuit upheld the repeal only by

misreading this Court’s precedent. It brushed aside

Petitioners’ hybrid-rights claim, wrongly confining

Wisconsin v. Yoder to its facts. But Yoder is not a relic.

This Court recently reaffirmed in Mahmoud v. Taylor

that parents have a constitutional right to direct the

religious upbringing of their children, and that laws

burdening that right demand strict scrutiny. The

burden here—seeking to compel vaccination despite

sincere religious objection—is of the same character

as the burden in Yoder, and it requires the same

searching review.

Even apart from Yoder, the Law cannot stand

because it is neither neutral nor generally applicable.

A law that permits secular exemptions but denies

religious ones is subject to strict scrutiny under this

Court’s precedents, including Lukumi, Fulton, and

Tandon. By favoring medical objections over religious

ones, New York singled out religion for disadvantage.

3

The State’s asserted public-health interests do not

excuse this unequal treatment, particularly when the

legislature’s own statements reveal open hostility to

religious convictions.

Finally, this case presents a clean vehicle for

revisiting Employment Division v. Smith. Smith has

been criticized since the day it was decided, and it is

inconsistent with the Framers’ understanding of the

Free Exercise Clause. If Smith permits the State to

crown secular judgment while banishing religious

conviction, then Smith itself must fall. The Free

Exercise Clause protects all Americans—parents and

children alike—from being forced to “render to Caesar”

what their convictions say they should not.2

ARGUMENT

Religious intolerance by the government is nothing

new. Governments have long targeted religious exercise

by prohibiting individual action or compelling certain

conduct. The Book of Daniel demonstrates both. King

Darius prohibited prayer to any God but himself but

Daniel continued praying three times a day.3 King

Nebuchadnezzar compelled that all “must fall down

and worship the image of gold” he had built or

“immediately be thrown into a blazing furnace,”4 but

2 Gospel of Mark 12:17 (New King James Version).

3 See Daniel 6 (New King James Version).

4 Daniel 3:5–6 (New King James Version).

4

three faithful servants of God refused to bow.5 Consider

also the Apostles, who were ordered not to speak in

the name of Jesus.6 And long before, Pharaoh sought

to break the Israelites’ spirit of worship by doubling

their burdens.7

These ancient examples have their modern equivalents. It now takes the form of the quiet coercion of

modern law. While threats to free exercise endure, our

Constitution speaks directly to them. That is because

“[w]e are a religious people whose institutions

presuppose a Supreme Being.” Zorach v. Clauson, 343

U.S. 306, 313 (1952). The United States abhors the

choice presented in the Book of Daniel, and the First

Amendment memorializes this “Nation’s essential

commitment to religious freedom,” Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524

(1993), and “embraces two concepts—freedom to believe

and freedom to act,” Cantwell v. State of Connecticut,

310 U.S. 296, 303 (1940). It also forbids even “subtle

departures from neutrality, and covert suppression of

particular religious beliefs.” Church of Lukumi Babalu

Aye, Inc., 508 U.S. at 534 (quoting Gillette v. United

States, 401 U.S. 437, 452 (1972) (cleaned up); Bowen

5 Central to ACSI’s mission and ministry is the education of

young children. For many, this story is most memorable in its

retelling in the classic VeggieTales episode, Rack, Shack & Benny,

in which three friends refuse to bow before a giant chocolate

bunny. VeggieTales | So Many Chocolate Bunnies! | Standing Up

To Peer Pressure, YouTube (Feb. 29, 2024), https://www.youtube.

com/watch?v=KDcf7vmE06U (last accessed Aug. 29, 2025).

6 See Acts 4:17–18; Acts 5:27–28, 40. (New King James Version).

7 See Exodus 5 (New King James Version).

5

v. Roy, 476 U.S. 693, 703 (1986)).8 Thus, “the Government of the United States, which gives to bigotry no

sanction, to persecution no assistance, requires only

that they who live under its protection should demean

themselves as good citizens . . . [and] every one shall

sit in safety under his own vine and fig tree and there

shall be none to make him afraid.” See George Washington’s 1790 Letter to the Hebrew Congregation of

Newport.9

Yet consider what happened here. For more than

fifty years, New York permitted both medical and

religious exemptions to its school vaccine requirement.

In 2019, that changed. The New York Legislature

eliminated the religious exemption. N.Y. Public Health

Law § 2164 (the “Law”). In doing so, members justified

their decision by calling religious objections to school

vaccine requirements “utter garbage”10 and “fake.”11

The Constitution does not permit the State to favor

medical opinion over religious conviction. When the

State grants exemptions for medical reasons, it cannot

8 The “Free Exercise Clause of the First Amendment, which has

been applied to the States through the Fourteenth Amendment,

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.

. . . ’” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 531 (1993) (emphasis omitted).

9 Synagogue Nat’l Hist. Site, https://perma.cc/53NC-RTJ6.

10 Assemblyman Jeffrey Dinowitz, Assembly Update, at 3:11,

Facebook (Mar. 19, 2019), https://tinyurl.com/yvkebum2 (last

accessed Aug. 25, 2025).

11 Transcript of N.Y. Senate Proceedings, at p. 5443, ln. 10–12

(June 13, 2019), https://perma.cc/J4FA-PDC7 (last accessed Aug.

25, 2025).

6

deny comparable exemptions for religious convictions

without violating the Constitution. The Association

provides support services to Christian schools across

the United States and its member schools educate

some 5.5 million children around the world . . . who

hold fast to religious convictions that deserve equal

respect by the government. Because the Association’s

members must navigate government regulations—

like the one challenged here—the Association has an

obvious interest. For the reasons below, the

Association urges this Court to grant the petition to

address the important questions raised.

I.

Yoder is not Nearly as Narrow as the Second

Circuit Held, and its Application Requires

that the Law Satisfy Heightened Scrutiny

The “right to free exercise, like other First

Amendment rights, is not shed . . . at the schoolhouse

gate.” Mahmoud v. Taylor, 606 U.S. ___, 45 S. Ct. 2332,

2350 (2025) (quoting Tinker v. Des Moines Indep.

Cmty. School Dist., 393 U.S. 503, 506–507 (1969).

Neither are parental rights. The Court should take

this opportunity to say so—again.

The Second Circuit “breezily dismissed” the Applicants’ hybrid rights claim. Mahmoud, 145 S. Ct. at

2357 (“Yoder is an important precedent of this Court,

and it cannot be breezily dismissed as a special exception granted to one particular religious minority.”).

Apparently, such “claims are generally not viewed as

viable” in the Second Circuit. Miller v. McDonald, 130

F.4th 258, 270 (2d Cir. 2025). That should come as news

here. Just last term, this Court reaffirmed Yoder,

which it has “never confined . . . to its facts.” Mahmoud,

145 S. Ct. at 2357. In Mahmoud, the Court held that

Montgomery County’s refusal to allow parents to opt

7

their children out of “LGBTQ+-inclusive” instruction

substantially burdened the parents’ right to direct the

religious upbringing of their children. The Board had

initially accommodated the families with notice and

opt-outs but rescinded that policy on the ground that

it “could not accommodate the growing number of opt

out requests without causing significant disruptions.”

Id. at 2346.

To ignore the parental rights claim, the Second

Circuit “observed that the Supreme Court in Yoder

‘took pains explicitly to limit its holding.’” Miller, 130

F.4th at 270. Of course, that is not true. And this

Court should not, as Justice Alito warned, “agree with

the decision of the lower courts to dismiss [the]

holding in Yoder out of hand.” Mahmoud, 145 S. Ct. at

2357.12 Think about what is at stake. In Yoder, this

Court held “that parents have a right to direct the

religious upbringing of their children, and that this

right can be infringed by laws that pose a very real

threat of undermining the religious beliefs and practices that parents wish to instill in their children.” Id.

at 2349 (quoting Wisconsin v. Yoder, 406 U.S. 205,

218, 233 (1972)). The Court reaffirmed that the Free

Exercise Clause protects against “more subtle forms of

interference,” including instruction that conflicts with

religious teachings. Id. at 2352 (citing Yoder, 406 U.S.

at 211). The Court should once again intervene to

“reject this chilling vision of the power of the state to

strip away the critical right of parents to guide the

religious development of their children,” and uphold

the view of religious liberty embodied in Yoder and

12 The Second Circuit largely adopted the “alarmingly narrow

rule that the dissent propound[ed]” in Mahmoud, which the majority

rejected. 145 S. Ct. at 2357.

8

Barnette, which “comports with the fundamental values

of the American people.” Id. at 2358.

Mahmoud involved a burden “of the exact same

character as the burden in Yoder”—a substantial

interference with the parents’ religious development

of their children. Mahmoud, 145 S. Ct. at 2361. The

burden here is “of the exact same character.” Yet the

Second Circuit framed the burden in a strikingly narrow

way. It dismissed the parents’ concerns by concluding

that forced vaccination would not “result in the

destruction of the Old Order Amish church community”

or forcibly remove children “from their community at

the expense of the Amish faith or the Amish way of

life.” Miller, 130 F.4th at 271–72. Those statements

misunderstand the very purposes for which religious

beliefs are taught—that is, so children grow to

conform their lives and conduct to the transcendent

beliefs imparted. The forced conduct here strikes at

the heart of belief—that Christians live out those

beliefs as “doers of the word, and not hearers only.”13

Because the “burden imposed is of the same character

as that imposed in Yoder, the Court need not ask

whether the law at issue is neutral or generally

applicable before proceeding to strict scrutiny.”

Mahmoud, 145 S. Ct. at 2361.

Because the Law burdens the parents’ hybrid

rights, it must withstand strict scrutiny. That means

the State “must demonstrate that its policy ‘advances

‘interests of the highest order’ and is narrowly tailored

to achieve those interests.” Id. (quoting Fulton v.

Philadelphia, 593 U.S. 522, 541 (2021)). Yet New York

did not try, and the Second Circuit completed only half

13 James 1:22 (New King James Version).

9

the assignment. It suggested the State may have compelling reasons for its mandate, but it did not explore

how the Law was “narrowly tailored to achieve those

interests.” For that reason alone, the Court should

send this case back for further review. Thus, the Court

could stop here, and grant, vacate, and remand this case

for further proceedings consistent with its “important

precedent.” Mahmoud, 145 S. Ct. at 2357.

II. The Law is Neither Neutral nor Generally

Applicable and Must thus Satisfy Strict

Scrutiny

If the Court declines to resolve this case by the

straightforward course of granting certiorari, vacating

the judgment, and remanding for proper consideration

of Petitioners’ hybrid-rights claim, it should proceed

to address the merits of their Free Exercise challenge

directly. The lower court’s disregard for Yoder is symptomatic of a deeper problem: the decision below rests

on the mistaken premise that Employment Division v.

Smith, 494 U.S. 872 (1990), remains a workable and

faithful guide to the Constitution’s command. It does

not. This case presents a timely and clean vehicle for

reconsidering the application of Smith or, if necessary,

overruling Smith and restoring the robust protection

for religious liberty that the Framers understood and

the Court recognized for nearly two centuries before

that decision.

This Court recently reiterated that a law loses its

claim to general applicability when it “prohibits

religious conduct while permitting secular conduct

that undermines the government’s asserted interests

in a similar way.” Fulton v. City of Philadelphia, 593

U.S. 522, 534 (2021). Yet New York’s Law does exactly

that. In it, New York decided that medical concerns

10

are more important than religious ones. Though the

Second Circuit agreed, it is wrong. To justify its result,

the lower court focused on whether the Law authorized

some discretion—as if that determines the constitutionality of the mandate. That an exemption “is phrased

in mandatory terms and applies to an objectively

defined group of people” ignores the point. Miller v.

McDonald, 720 F. Supp. 3d 198, 214 (W.D.N.Y. 2024).

Asking the wrong question, the Court got the wrong

answer. Instead, the question is whether there is any

exception to the rule—not the means by which an

exemption may be granted. It is not the fact that a

doctor believes his patient may risk medical harm if

forced to take a vaccine, it is that the State allows a

medical exemption and not a religious one. Thus, New

York’s Law “loses its claim to general applicability,”

and the decision to allow medical exemptions while

refusing religious exemptions is sufficiently suggestive

of discriminatory intent to trigger heightened scrutiny

under Smith and Lukumi.

In Smith, the Court upheld an Oregon law that

prohibited the “knowing or intentional possession of a

‘controlled substance’ unless the substance has been

prescribed by a medical practitioner.” Smith, 494 U.S.

at 874. The purpose was to curb the unregulated use

of dangerous drugs. The statute’s requirement did not

undermine the State’s interest there.

Not so here. New York has made a value judgment

that secular (i.e., medical) motivations for vaccine

exemptions are important enough to overcome its

general interest in uniformity. On the other hand, New

York concluded that religious motivations are not

important enough to overcome that interest. When

government makes a value judgment in favor of

11

secular motivations, but denies the value of religious

ones, the government’s actions must satisfy heightened

scrutiny. Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 542–43 (1993) (“All laws are

selective to some extent, but categories of selection are

of paramount concern when a law has the incidental

effect of burdening religious practice. The Free Exercise

Clause protects religious observers against unequal

treatment.” (cleaned up)). That is because a “law is not

generally applicable if it invites the government to

consider the particular reasons for a person’s conduct

by providing a mechanism for individualized exemptions.” Fulton, 593 U.S. at 533 (citing Smith, 494 U.S.

at 884). Allowing a student to remain unvaccinated

undermines the State’s asserted public health goals

equally whether that student happens to remain unvaccinated for medical reasons—or religious ones.

When the State permits secular exemptions from

a generally applicable rule, such as medical exceptions

to a vaccination requirement, it cannot turn around

and deny religious exemptions without violating the

First Amendment. A rule that tolerates secular objections but punishes religious conviction is no longer

neutral, and is thus unconstitutional. See, e.g., Roberts v.

Neace, 958 F.3d 409, 416 (6th Cir. 2020) (observing “the

unexplained breadth of the ban on religious services,

together with its haven for numerous secular exceptions,

cannot co-exist with a society that places religious

freedom in a place of honor in the Bill of Rights: the

First Amendment“).

The Second Circuit upheld an exemption regime

that treats religious conviction as a threat and secular

judgment as a virtue—simply because religious beliefs

are enduring, consistent, and morally anchored. That

12

turns the Constitution on its head. The First Amendment was not designed to reward fleeting, fact-specific

objections while punishing those whose enduring faith

informs every decision. If the government may grant

exemptions for temporary, subjective, and evolving

medical concerns, but deny them for sincere, principled,

and unwavering religious beliefs, it has enshrined

secularism as the state religion—and made virtue into

vice. That can’t be. “If there is any fixed star in our

constitutional constellation, it is that no official, high

or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act their

faith therein.” W. Va. Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943).

New York’s Law is not neutral. It favors medical

claims while discounting religious conviction. To uphold

the regime, the Second Circuit distinguished the religious and medical exemptions on the basis that the

two exemptions “are meaningfully different in scope

and duration.” Miller v. McDonald, 130 F.4th at 267.

As the lower court explained, the “medical exemption

is granted only with ‘sufficient’ documentation of the

child’s contraindication to ‘a specific immunization.’ It

has limits; it lasts only ‘until such immunization is

found no longer to be detrimental to the child’s health,’

and ‘must be reissued annually.’” Id. at 268. Thus, the

court concluded that the “religious exemption’s sweep

had a far greater ability to undermine the State’s

interest in preventing the spread of disease.” Id. Conducting a risk analysis in the aggregate, the lower

court concluded that Plaintiffs had “not plausibly alleged

that the law favors comparable secular conduct.” Id.

13

To reach that conclusion, the lower court praised

the administrative hurdle of annual renewals as if

bureaucratic procedure justifies unequal treatment.

Worse still, the court suggested that religious liberty

may be curtailed if too many people choose to exercise

their beliefs—as though constitutional rights diminish

with popularity. Of course, the Free Exercise Clause

was not written to protect only a manageable few. See

Mahmoud v. Taylor, 145 S. Ct. at 2346, 2363–64 (recognizing the unconstitutional burden imposed on parents’

right to direct the religious upbringing of their children

when the school board rescinded its opt-out policy

because of “the growing number of opt out requests

without causing significant disruptions”). Still, that

concern might help the State justify its actions as

responsive to a compelling interest. But the State does

not begin to address how its Law was narrowly

tailored to serve that interest—nor did the lower court

require it to do so. Regardless, an alleged compelling

interest has no relevance at the first step of determining

whether the Law burdens religion.

The lower court also suggested the scope of the

religious exemption was far broader than the scope of

the medical exemption, and therefore concluded that

it was appropriately rescinded. The court reached the

wrong conclusion by narrowing its view of the exemption rather than recognizing a broader exemption

meant it garnered greater protection. According to the

lower court, the “religious exemption was generalized

to all vaccines,” whereas the medical exemption required

individualized documentation of the child’s contraindication to “a specific immunization.” Miller, 130 F.4th

at 267–68. Yet the State implemented the mandate to

address a specific measles outbreak, id. at 263, 268,

14

and it is hard to square the lower court’s conclusion that

a law that requires individualized medical assessment

is “generally applicable.” Regardless, the scope of the

religious objection should have no relevance when

considering the State’s specific concern and, instead,

suggests that the State views religious adherents as

unreasonable or a threat to public health.

We have seen this sort of line drawing before.

“Over the last few years, the Federal Government and

the States have enacted a host of emergency measures

to address the COVID–19 pandemic. Many were not

neutral toward religious exercise or generally applicable.” Dr. A. v. Hochul, 142 S. Ct. 2569, 2571 (2022)

(Thomas, J. dissenting from the denial of certiorari)

(collecting cases). During the pandemic, several states

issued executive orders favoring liquor stores and

other secular services, while churches and synagogues

were forced to shutter. See, e.g., Roberts v. Neace, 958

F.3d 409, 414–15 (6th Cir. 2020) (“[R]estrictions inexplicably applied to one group and exempted from another

do little to further these goals and do much to burden

religious freedom. Assuming all of the same precautions

are taken, why can someone safely walk down a

grocery store aisle but not a pew? And why can

someone safely interact with a brave deliverywoman

but not with a stoic minister? The Commonwealth has

no good answers. While the law may take periodic

naps during a pandemic, we will not let it sleep

through one.”); Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603, 2609 (2020) (Gorsuch, J. dissenting

from the denial of an application for injunctive relief)

(“The world we inhabit today, with a pandemic upon

us, poses unusual challenges. But there is no world in

which the Constitution permits Nevada to favor

15

Caesars Palace over Calvary Chapel.”). In the end,

however, this Court rejected such line drawing. If a

state favored the secular in one respect, it had to

justify why religion was excluded from that favored

class. Cf. Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14, 29 (2020) (Kavanaugh, J. concurring)

(“[O]nce a State creates a favored class of businesses,

as New York has done in this case, the State must

justify why houses of worship are excluded from that

favored class.”); S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613, 1615 (2020) (Kavanaugh, J.

dissenting) (“The State also has substantial room to

draw lines, especially in an emergency. But as relevant

here, the Constitution imposes one key restriction on

that line-drawing: The State may not discriminate

against religion.”). To do otherwise is “odious to our

Constitution.” S. Bay United Pentecostal Church, 140

S. Ct. at 1614 (Kavanaugh, J. dissenting) (collecting

cases). Because New York’s law treats comparable

secular activity—medical exemptions—more favorably

than religious ones, the Law is “not neutral and

generally applicable, and therefore trigger[s] strict

scrutiny under the Free Exercise Clause.” Tandon v.

Newsom, 593 U.S. 61, 62 (2021) (citing Roman Cath.

Diocese of Brooklyn, 592 U.S. at 18–20 (per curiam)).

Finally, the Constitution “commits government

itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from

animosity to religion or distrust of its practices, all

officials must pause to remember their own high duty

to the Constitution and to the rights it secures.”

Masterpiece Cakeshop v. Colorado Civil Rights Comm’n,

584 U.S. 617, 638–39 (2018) (quoting Church of Lukumi

Babalu Aye, Inc., 508 U.S. at 547). Legislators may not

16

devise mechanisms, overt or disguised, designed to

persecute or oppress a religion or its practices. And

this Court has said that “government actions burdening

religious practice should be ‘set aside’ if there is even

‘slight suspicion’ that those actions ‘stem from animosity

to religion or distrust of its practices.’” Dr. A, 142 S.

Ct. at 555 (Gorsuch, J. dissenting from the denial of

application for injunctive relief) (quoting Masterpiece

Cakeshop, 584 U.S. at 638–39).

Pause here. There is at least a “slight suspicion”

that New York’s Law “stem[s] from animosity to

religion.” The State moved to eliminate a nearly fiftyyear old exemption that honored religious convictions

while its proponents rushed to call such religious

objections to school vaccine requirements “utter

garbage”14 and “fake.”15 Either way, the “constitutional

requirement is of government neutrality, through the

application of generally applicable laws, not just of

governmental avoidance of bigotry.” Colo. Christian

Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008)

(cleaned up). New York’s Law fails on both fronts.

In the end, “Smith has been criticized since the

day it was decided. No fewer than ten Justices—

including six sitting Justices—have questioned its

fidelity to the Constitution.” Fulton v. City of Philadelphia, 593 U.S. at 626–27 (Gorsuch, J. concurring).

And this Court has acknowledged that stare decisis is

“‘not an inexorable command.’” Janus v. Am. Fed’n of

14 Assemblyman Jeffrey Dinowitz, Assembly Update, at 3:11,

Facebook (Mar. 19, 2019), https://tinyurl.com/yvkebum2 (last

accessed Aug. 25, 2025).

15 Transcript of Senate Proceedings at 5443 (June 13, 2019),

https://perma.cc/J4FA-PDC7.

17

State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878,

917 (2018) (quoting Pearson v. Callahan, 555 U.S.

223, 233 (2009)). Yet, for many, religious convictions

are exactly that. If Smith allows the State to favor

secular thought over religious conviction, then Smith

itself must fall—because in the United States the

government may not crown the secular as king and

order the faithful to worship its idols.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Carmine G. Iaccarino

Counsel of Record

Bryan H. Beauman

STURGILL, TURNER, BARKER & MOLONEY, PLLC

333 W. Vine Street, Ste 1500

Lexington, KY 40507

(859) 255-8581

carmine@sturgillturner.com

Counsel for Amicus Curiae

September 2, 2025