1

21-551-cv

M.A. v. Rockland County Department of Health

In the

United States Court of Appeals

For the Second Circuit

August Term, 2021

No. 21-551

M.A., on behalf of his minor children, H.R. & M., M.C., on behalf of her minor 

child, R.J., W.D., on behalf of his minor children, A. & J., N.D., on behalf of her 

minor children, L.M. & P., E.E., J., on behalf of their minor children, A. & S., J.J., on 

behalf of her minor child R., L.V.G., on behalf of his four minor children, P.J., on 

behalf of his minor child A., D. on behalf of their minor children, S. & O., R.J. on 

behalf of their minor children S. & O., K.K., on behalf of her minor children M. &

G., L.K. on behalf of his minor child L., M.K., on behalf of his minor child, A.,

V.L., on behalf of their two minor children, V.M., on behalf of their minor child,

I., A.M., on behalf of their minor child, I., T. on behalf of their minor children Y.,

N. & S., M.M., on behalf of their minor children Y., N. & S., K.M.M., on behalf of 

their minor children, S., K. & L., W.M., on behalf of their minor children, S., K. &

L., K.M., on behalf of their minor children, R. & A., J.O., on behalf of her minor 

child, T., M.P., on behalf of his minor children, TR. & TE., L.P., on behalf of her 

minor child, M., M.R., on behalf of her minor children, R. & E., J.R., T.T., on behalf 

of his minor child, M., Y.T., on behalf of her minor child, Y., J.E., M.O.,

Plaintiffs-Appellants,

v.

ROCKLAND COUNTY DEPARTMENT OF HEALTH, DR. PATRICIA SCHNABEL RUPPERT,

in her official capacity as Commissioner and in her individual capacity,
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ROCKLAND COUNTY, ED DAY, in his official capacity as County Executive and in 

his individual capacity,1

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of New York

No. 19-cv-2066

(Argued: June 14, 2022; Decided: November 9, 2022)

Before: POOLER, PARK, and LEE, Circuit Judges.

Plaintiffs-Appellants, who are the parents of minor children enrolled in the 

Green Meadow Waldorf School or the Otto Specht School and are residents of 

Rockland County, New York, bring this action against the Rockland County 

Department of Health and several Rockland County officials asserting various 

claims, including a violation of the Free Exercise Clause of the First Amendment, 

based on orders which excluded children who were not vaccinated against 

measles from attending school and an emergency declaration which barred 

unvaccinated children, other than those with medical exemptions, from places of 

public assembly.

Defendants subsequently moved for summary judgment, and the district 

court granted their motion in full. We disagree with the district court’s dismissal 

of Plaintiffs’ Free Exercise claim because this claim raises numerous factual 

disputes—including whether there is evidence of religious animus, to whom the 

emergency declaration applied, and what the County’s purpose was in enacting 

the declaration—that prevent Defendants from prevailing on summary judgment.

1 The Clerk of the Court is respectfully directed to amend the official caption to 

conform to the above.
3

For the reasons explained below, we VACATE in part as to the grant of 

summary judgment on the Free Exercise claim, REVERSE the district court’s 

dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim 

and for consideration of whether partial summary judgment for the Defendants is 

warranted on the remaining claims.

Judge Park concurs in a separate opinion.

MICHAEL H. SUSSMAN, Sussman & 

Associates, Goshen, New York, for 

Plaintiffs-Appellants.

LARRAINE FEIDEN, Principal Assistant

County Attorney (Patrick John 

Fischer, Principal Assistant County 

Attorney, on the brief), for Thomas E. 

Humbach, County Attorney, County 

of Rockland Department of Law, 

New City, New York, for DefendantsAppellees.

EUNICE C. LEE, Circuit Judge:

Plaintiffs-Appellants, who are the parents of minor children enrolled in the 

Green Meadow Waldorf School or the Otto Specht School and are residents of 

Rockland County, New York, bring this action against the Rockland County 

Department of Health and several Rockland County officials asserting various 

claims, including a violation of the Free Exercise Clause of the First Amendment, 
4

based on orders which excluded children who were not vaccinated against 

measles from attending school and an emergency declaration which barred 

unvaccinated children, other than those with medical exemptions, from places of 

public assembly.

Defendants subsequently moved for summary judgment, and the district 

court granted their motion in full. We disagree with the district court’s dismissal 

of Plaintiffs’ Free Exercise claim because this claim raises numerous factual 

disputes—including whether there is evidence of religious animus, to whom the 

emergency declaration applied, and what the County’s purpose was in enacting 

the declaration—that prevent Defendants from prevailing on summary judgment.

For the reasons explained below, we VACATE in part as to the grant of 

summary judgment on the Free Exercise claim, REVERSE the district court’s 

dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim 

and for consideration of whether partial summary judgment for the Defendants is 

warranted on the remaining claims.

BACKGROUND

Beginning in October 2018, Rockland County experienced a measles 

outbreak—the largest outbreak in New York since measles was declared 
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eradicated in 2000. The Rockland County Department of Health (“RC DOH”), 

including Defendant-Appellee Patricia Schnabel Ruppert, the Commissioner of 

Health of the Rockland County Health District, coordinated with the New York 

State Department of Health (“NY DOH”) to identify cases and implement contact 

tracing methods. Isolation at home was recommended for those who had been 

exposed and lacked immunity. However, cases began to spread. 

That same month, RC DOH began to issue temporary orders of exclusion to 

schools with one or more measles case, requiring that unvaccinated and partially 

vaccinated children stay home. After cases continued to rise, NY DOH and RC 

DOH broadened their school exclusion orders on November 1, 2018, to reach 

schools without infected students, but with low vaccination rates, if those schools 

were in close geographic proximity to the areas with the highest concentration of 

confirmed cases. The NY DOH identified two zip codes with the highest 

concentrations of confirmed cases, which cover approximately eleven square miles 

and primarily contain Hasidic Jewish communities. At first, a low vaccination rate 

was considered under 70%, but since less restrictive means did not quell the 

outbreak, Ruppert upped the low vaccination rate designation to 80% and then 

95%. 
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On December 3, 2018, RC DOH ordered the Green Meadow Waldorf School 

and its sister school, the Otto Specht School (collectively, “GMWS”), to exclude all 

non-vaccinated students for twenty-one days because it was in one of the 

identified zip codes and its vaccination rate was only about one-third of students

(“First Exclusion Order”). Prior to the start of the measles outbreak, all of 

Plaintiffs’ children had previously received religious exemptions to vaccination, 

including for measles, from GMWS.2 However, the First Exclusion Order and the 

subsequent exclusion orders provided no religious or medical exemptions. By 

December 21, 2018, 105 cases had been reported in Rockland County, up from 

forty-five in late October,3 and RC DOH issued another order informing GMWS 

that if it reached the threshold of 95% vaccinated, then RC DOH would lift the 

current exclusion order (“Second Exclusion Order”). RC DOH sent additional 

exclusion orders to other schools with vaccination rates under 95% on January 3, 

2019. 

2 Approximately forty-four percent of GMWS’s elementary school population 

had religious exemptions to vaccination. However, GMWS is not a religiousbased school. 

3 New York State Measles Watch, N.Y. ST. DEP’T HEALTH,

https://nyshc.health.ny.gov/web/nyapd/measles-watch.
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On January 30, 2019, RC DOH found that GMWS high school had achieved 

a 95% vaccination rate for students under eighteen and lifted the high school’s 

exclusion order. However, on February 7, 2019, GMWS was informed that as long 

as any active case of measles existed in Rockland County, the exclusion orders on 

the lower school would not be lifted until the school achieved a 95% vaccination 

rate or forty-two days passed without any new cases (“Third Exclusion Order”). 

These Exclusion Orders formed the basis for Plaintiffs’ initial complaint in this 

action, which was filed in federal court on March 6, 2019, and alleged various 

claims against RC DOH and Defendant Ruppert. 

In March 2019, NY DOH reported that Rockland County had seen a total of 

152 measles cases since the outbreak began in October, which included a rise in 

cases from the 116 cases that had been reported in January. On March 26, 2019, 

Defendant-Appellee Ed Day, Rockland County Executive, issued a Local State of 

Emergency Declaration (the “Emergency Declaration” or the “Declaration”), 

barring unvaccinated children under the age of eighteen, except for those with a 

medical exemption or documented serological immunity, from places of public 

assembly, including schools. The Declaration provided that: 

From 12:01 a.m. March 27, 2019 to 11:59 p.m. on April 25, 2019, no 

parent or guardian of a minor or infant under the age of 18, shall 
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cause, allow, permit, or suffer a minor or infant under their 

supervision, to enter any place of public assembly in Rockland 

County, if that minor or infant is not vaccinated against measles for 

any reason other than being serologically immune to measles as 

documented by a physician, or prevented from receiving a measles 

vaccination for a medical reason documented by a physician, or 

because the infant is under the age of 6 months.

Joint App’x at JA-1648. At his deposition, Day testified that he issued the 

Declaration after Ruppert expressed concern regarding a possible rise in measles 

during the upcoming holiday season of Easter and Passover. Ruppert, however, 

testified that she “had no direct role” in the development of the Declaration. Joint 

App’x at JA-356.

On April 3, 2019, in an Article 78 proceeding before the Supreme Court, 

County of Rockland, and while the federal lawsuit was still pending, Plaintiffs 

sought a preliminary injunction ordering Rockland County to rescind the 

Emergency Declaration and Third Exclusion Order. See Order to Show Cause,

W.D. v. Cnty. of Rockland, No. 31783/2019 (Sup. Ct. Rockland Cnty. Apr. 3, 2019), 

ECF No. 2. The court granted the motion on April 5, 2019. W.D. v. Cnty. of 

Rockland, 101 N.Y.S.3d 820, 824 (Sup. Ct. 2019). On April 19, 2019, the Second 

Department denied Rockland County’s motion for leave to appeal and to stay 

enforcement of the Supreme Court’s ruling. Decision & Order on Motion, W.D. v. 
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Cnty. of Rockland, No. 2019-03666 (N.Y. App. Div. 2d Dep’t Apr. 19, 2019), ECF No. 

45.

Later in April, Day and Ruppert lobbied New York legislators to repeal New 

York State’s statutory religious exemption to the vaccine requirement for school 

children, which requires vaccination against measles. In support of the repeal, 

Day stated: “There’s no such thing as a religious exception. The bottom line here 

is that in addition to the fear factor, we have, we have babies in ICU’s. We’ve had 

a baby born with measles. When are we going to wake up and say, ‘you know 

something, let’s do the right thing here . . . .’” Joint App’x at JA-1724, JA-2195. Day 

also characterized “anti-vaxxers” as “loud, very vocal, also very ignorant.” Joint 

App’x at JA-2186. The New York legislature passed a bill repealing all religious 

exemptions for vaccination on June 13, 2019. S. 2994A, 2019-2020 S., Reg. Sess. 

(N.Y. 2019). On September 25, 2019, Rockland County declared an end to the 

resurgence. 

In their amended complaint in federal court, which added Day and the 

County as Defendants, as well as claims based on the Emergency Declaration,

Plaintiffs alleged a violation of procedural due process, violation of the First 

Amendment Free Exercise Clause, violation of the Fourteenth Amendment Equal 
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Protection Clause, and violation of the right to publicly assemble under the First 

Amendment. Plaintiffs claimed that the Exclusion Orders and Emergency

Declaration impermissibly targeted them based on their sincerely held religious 

beliefs. Following discovery, Defendants moved for summary judgment on all 

claims.

The district court granted Defendants’ motion in full. W.D. v. Rockland 

Cnty., 521 F. Supp. 3d 358, 371 (S.D.N.Y. 2021). As relevant to Plaintiffs’ Free 

Exercise claim, the district court found that the Emergency Declaration prohibiting 

unvaccinated children, except those with a medical exemption, from assembly in 

certain public places was “subject to rational basis review because it [was] both

facially neutral and generally applicable.” Id. at 397. As to neutrality, the district 

court observed that the Declaration applied to all “children between six months 

and eighteen years old who were unvaccinated ‘for any reason,’ except those with 

documented medical reasons preventing vaccination or those deemed 

serologically immune.” Id. at 398. Moreover, the Declaration applied equally to all 

types of gatherings and did not distinguish between religious and non-religious 

children. Id. at 398–400. The district court found no disputed facts as to 

discriminatory intent, despite Day’s comments regarding “anti-vaxxers,” because 
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those comments “d[id] not raise a triable issue of fact as to discriminatory intent 

because none of Day’s statements are derogatory, nor do they indicate ‘active 

hostility’ towards religion.” Id. at 400–01 (citation omitted).

The district court concluded that the Declaration was generally applicable 

because it “impose[d] identical burdens on religious and non-religious conduct”

and observed that the Declaration applied to children other than those with 

religious affiliations, including those who were homeschooled or were not 

vaccinated for non-religious reasons. Id. at 402–03. Plaintiffs argued that because 

the Declaration provided only a medical exemption, it was underinclusive, and 

likely targeting religion, given that children who are unvaccinated for medical 

reasons are “just as likely” as children unvaccinated for religious reasons “to 

become infected and spread the virus” if permitted to gather in public places. Id.

at 403. Rejecting Plaintiffs’ argument, the court explained that “the medical 

exemption was created to control the measles outbreak by encouraging 

vaccination” of all those who could be vaccinated, “while protecting those who 

could not be inoculated for medical reasons.” Id.

Applying rational basis review, the district court found that the Emergency 

Declaration was rationally related to Defendants’ interest in controlling measles. 
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Id. at 406–07. Next, in the alternative, the district court evaluated the Declaration 

under strict scrutiny, finding that the interest in quelling the measles outbreak was 

compelling and that the Declaration was narrowly tailored in light of “Defendants’ 

previous unsuccessful efforts, the medical data and their limited resources in 

March 2019.” Id. at 407–08. Finally, the district court found that Plaintiffs’ 

procedural due process claim, Equal Protection Clause claim, and freedom of 

assembly claim all failed. Id. at 381–96, 409–14. This appeal, which challenges the 

Exclusion Orders and Declaration, followed. 

“We review a district court’s grant of summary judgment de novo, 

construing the evidence in the light most favorable to the party opposing summary 

judgment and drawing all reasonable inferences in her favor.” Guan v. City of N.Y., 

37 F.4th 797, 804 (2d Cir. 2022). Summary judgment is appropriate where “the 

movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

For the reasons explained below, we VACATE the district court’s grant of 

summary judgment for Defendants as to the Free Exercise claim, REVERSE the 

district court’s dismissal of Plaintiffs’ claims, and REMAND for trial on the Free 
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Exercise claim and consideration of whether partial summary judgment is 

warranted on the remaining claims. 

DISCUSSION

Because there are factual issues relevant to whether the Emergency 

Declaration was neutral and generally applicable, the district court erred in 

granting summary judgment in favor of Defendants on Plaintiffs’ claim that the 

Emergency Declaration violated their rights under the Free Exercise Clause. While 

a reasonable juror could conclude that Day’s statements evinced religious animus, 

rendering the Declaration not neutral, a reasonable juror could also conclude the 

opposite. Similarly, there are disputes of fact regarding whether the Declaration, 

in practice, primarily affected children of religious objectors or whether there was 

a sizable population of children who were unvaccinated for a variety of nonmedical and non-religious reasons. There are also disputes as to whether the 

County’s purpose in issuing the Declaration was to stop the spread of measles or 

to encourage vaccination. Given these fact-intensive issues, the district court’s 

grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.4

4 On appeal, Plaintiffs challenge the district court’s decision in its entirety. Because 

we find that the district court’s dismissal of Plaintiffs’ Free Exercise claim was 
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The Free Exercise Clause protects “the ability of those who hold religious 

beliefs of all kinds to live out their faiths in daily life through ‘the performance of 

(or abstention from) physical acts.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 

2421 (2022) (quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 

(1990)). However, “the right of free exercise does not relieve an individual of the 

obligation to comply with a valid and neutral law of general applicability on the 

ground that the law proscribes (or prescribes) conduct that his religion prescribes 

(or proscribes).” Smith, 494 U.S. at 879 (citation and internal quotation marks 

omitted). Where a law is both neutral and generally applicable, rational basis 

review applies. See Kane v. de Blasio, 19 F.4th 152, 166 (2d Cir. 2021). On the other 

hand, where a law is not neutral or generally applicable, “this Court will find a 

First Amendment violation unless the government can satisfy ‘strict scrutiny’ by 

demonstrating its course was justified by a compelling state interest and was 

narrowly tailored in pursuit of that interest.” Kennedy, 142 S. Ct. at 2422 (quoting 

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). We 

address neutrality and general applicability in turn.

erroneous, we reverse as to that claim, vacate the district court’s grant of summary 

judgment as a whole, and remand for consideration of whether partial summary 

judgment is justified on the remaining claims.
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I. Neutrality

“[I]f the object of a law is to infringe upon or restrict practices because of 

their religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533. “To 

determine the object of a law, we must begin with its text, for the minimum 

requirement of neutrality is that a law not discriminate on its face.” Id. We find 

that the Declaration is facially neutral in that it applies to all unvaccinated 

children, but for two limited exceptions, in prohibiting them from entering a place 

of public assembly. See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 281 (2d 

Cir. 2021) (finding a rule facially neutral because it applied to “all 

‘personnel,’ . . . aside from those who qualify for the narrowly framed medical 

exemption”). However, “[o]fficial action that targets religious conduct for 

distinctive treatment cannot be shielded by mere compliance with the requirement 

of facial neutrality.” Lukumi, 508 U.S. at 534. 

We therefore consider whether the Declaration “had as [its] object the 

suppression of religion” by assessing factors including, “the historical background 

of the decision under challenge, the specific series of events leading to the 

enactment or official policy in question, and the legislative or administrative 

history, including contemporaneous statements made by members of the 
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decisionmaking body.” Id. at 540; see also Masterpiece Cakeshop, Ltd. v. Colo. C.R.

Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Lukumi, 508 U.S. at 540). 

“Government fails to act neutrally when it proceeds in a manner intolerant of 

religious beliefs or restricts practices because of their religious nature.” Fulton v. 

City of Phila., 141 S. Ct. 1868, 1877 (2021).

Plaintiffs argue that the object of the Declaration was to burden the exercise 

of their religious beliefs because Day and Ruppert acted with discriminatory 

intent, evinced by Day’s statements made between April and June 2019. 

Defendants respond that the statements do not illustrate discriminatory intent 

because they were made several weeks after the Declaration was rescinded and in 

a different context. 

Given the fact-intensive nature of this inquiry, Defendants have not met the 

high bar required to prevail at the summary-judgment stage. Contrary to the 

district court’s holding, we conclude that a reasonable juror could find that 

Defendants acted with religious animus. Notably, Day testified that he issued the 

Declaration after Ruppert expressed concern over a rise in measles cases during

the Easter and Passover holidays. Moreover, in connection with his lobbying for 

the repeal of a religious exemption to vaccination, Day commented that “[t]here’s 
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no such thing as a religious exception” and characterized “anti-vaxxers” as “very 

ignorant.” Joint App’x at JA-1724.5 Based on these facts, a reasonable juror could 

find the Declaration was designed “to target religious objectors to the vaccine 

requirement because of their religious beliefs.” We The Patriots, 17 F.4th at 284. As

the Supreme Court has recognized, the government “cannot act in a manner that 

passes judgment upon or presupposes the illegitimacy of religious beliefs and 

practices.” Masterpiece Cakeshop, 138 S. Ct. at 1731.

Assessing the relevance of statements by public officials to the question of 

religious animus is often context specific. In We The Patriots, this Court held that 

statements made by Governor Kathy Hochul at a press conference, including that 

her “‘personal opinion’ [was] that no religious exemption is required” and “that 

she was ‘not aware of’ any ‘sanctioned religious exemption from any organized 

religion,’” did not evince religious animosity in connection with a vaccine

requirement for healthcare workers that did not provide a religious exemption. 17 

F.4th at 283–84. Unlike here, however, Governor Hochul did not actually issue the 

vaccination rule, see id. at 274 (the rule “was issued by the State’s Public Health 

5 At oral argument, Defendants’ counsel reiterated Day’s sentiments, referring to 

Plaintiffs’ “so-called religious beliefs.” Arg. 22:21–25.
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and Health Planning Council, a group of 25 healthcare professionals, including the 

Commissioner of Health”), and her statements merely appeared to express “the

State’s litigation position” and “the fact . . . that many religious leaders have stated 

that vaccination is consistent with their faiths,” id. at 283-84. Ultimately, given that 

it was Day himself who issued the Declaration and indicated that the religious 

holidays were a factor in doing so, and that Day later made derogatory comments 

about “anti-vaxxers,” which may include religious objectors, the evidence could 

support a finding of discriminatory intent.

On the other hand, a juror could find that there is no evidence of religious 

animus. Although Day stated that he issued the Declaration after Ruppert 

expressed concern regarding measles cases during the religious holidays, a juror 

could also credit Ruppert’s testimony that she had no direct role in developing the 

Declaration. Additionally, Day’s remaining statements postdated the Declaration

and were made in connection with repealing the religious exemption, not issuing 

the Declaration. Cf. Masterpiece Cakeshop, 138 S. Ct. at 1729–30 (finding 

contemporaneous statements were evidence of religious animus). A reasonable 

juror could conclude that while Day’s statements were “insensitive,” see W.D., 521 

F. Supp. 3d at 401, he was merely expressing a concern for the community’s health, 
19

not a hostility towards religion. At bottom, this presents the sort of close factual 

question that should be left to the jury. The district court erred in holding 

otherwise.

II. General Applicability 

The general applicability requirement prohibits the government from “in a 

selective manner impos[ing] burdens only on conduct motivated by religious 

belief.” Lukumi, 508 U.S. at 543. “A law . . . lacks general applicability if it 

prohibits religious conduct while permitting secular conduct that undermines the 

government’s asserted interests in a similar way.” Fulton, 141 S. Ct. at 1877; see 

Cent. Rabbinical Cong. of the U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 

763 F.3d 183, 197 (2d Cir. 2014) (“A law is therefore not generally applicable if it is 

substantially underinclusive such that it regulates religious conduct while failing 

to regulate secular conduct that is at least as harmful to the legitimate government 

interests purportedly justifying it.”). “[W]hether two activities are comparable for 

purposes of the Free Exercise Clause must be judged against the asserted 

government interest that justifies the regulation at issue,” and “[c]omparability is 

concerned with the risks various activities pose.” We The Patriots, 17 F.4th at 285

(quoting Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021)).
20

Plaintiffs argue that the Declaration is not generally applicable because the

medical exemption permits those who are unvaccinated for non-religious reasons 

to assemble in public places. Plaintiffs characterize unvaccinated children who are 

subject to the Declaration as falling into two groups—children with medical 

exemptions and the children of religious objectors—with only the latter being 

prohibited from public gatherings. Defendants counter that the Declaration 

applied to multiple categories of non-religious, unvaccinated children, affecting 

them to the same extent as Plaintiffs’ children. 

Given the underdeveloped record, Defendants have failed to meet the 

burden needed to prevail without trial on this issue. In finding the Declaration 

generally applicable, the district court accepted the assertion that the Declaration 

prohibited children other than those of religious objectors from public assembly. 

See W.D., 521 F. Supp. 3d at 402. However, based on the record before us, we 

cannot determine whether the Declaration affected only the two groups identified 

by Plaintiffs or affected the other groups posited by the district court, such as

homeschooled students or those who objected to vaccination on philosophical 
21

grounds.6 Much like the question of religious animus, the question of who was 

actually affected by the Declaration should be put before the factfinder.

Additionally, there is a dispute regarding what governmental interest the 

Declaration was intended to serve, which is relevant to the question of whether 

the Declaration was “substantially underinclusive,” and therefore, not generally 

applicable. See We The Patriots, 17 F.4th at 284–85. Rockland County’s interest in 

issuing the Declaration could be to stop the transmission of measles, which might 

lead a factfinder to question why there was a medical exemption, where, as 

Plaintiffs point out, medically exempt children “are every bit as likely to carry 

undetected measles [as] a child with a religious exemption and are much more 

vulnerable to the spread of the disease and serious health effects if they contract 

it.” Appellants’ Br. at 56.

On the other hand, as advocated by Defendants, the purpose of the 

Declaration could be to encourage vaccination. If this is the purpose, then the 

Declaration could be viewed as a reasonable method for doing so. The language 

of the Declaration itself, however, does little to resolve this issue, stating both that 

6 The district court’s citations to bolster this fact—which are to Defendants’ 

memoranda of law, see W.D., 521 F. Supp. 3d at 402—provide little factual 

support.
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“[i]t has been found that a meaningful portion of the County’s residents are not 

vaccinated against the measles, which permits the outbreak to continue,” and that 

the Declaration must be issued to “protect the infants, infirm, and ill of this County 

who are unable to be vaccinated against the measles or who are 

immunocompromised.” Joint App’x at JA-1647. This is another fact-intensive 

question that should be explored at trial through the examination of evidence that 

supports or undermines the two suggested purposes, including whether there is 

any evidence to suggest that the County’s stated purpose is pretextual. See We The 

Patriots, 17 F.4th at 285.

In sum, because factual questions about the Emergency Declaration pervade

the issues of neutrality and general applicability, the question of what level of 

scrutiny applies cannot be resolved on summary judgment, and Defendants fail to 

meet the high burden required to prevail at this stage. Therefore, the district 

court’s grant of summary judgment for Defendants on Plaintiffs’ Free Exercise 

claim was in error. 

CONCLUSION

For the reasons set forth above, we VACATE in part as to the grant of 

summary judgment on the Free Exercise claim, REVERSE the district court’s 
23

dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim 

and for consideration of whether partial summary judgment for the Defendants is 

warranted on the remaining claims.
21-551-cv

M.A. v. Rockland Cnty. Dep’t of Health

PARK, Circuit Judge, concurring:

In the spring of 2019, Rockland County quarantined children 

who were unvaccinated for measles for religious reasons—

prohibiting them from entering any public place—but not children 

who were unvaccinated with medical exemptions. County officials 

did not even try to hide their reasons for engaging in this “religious 

gerrymander[ing],” which served to isolate, target, and burden 

Plaintiffs’ religious practices.1 Church of the Lukumi Babalu Aye, Inc. 

v. City of Hialeah, 508 U.S. 520, 534 (1993) (citation omitted). To them, 

Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also 

very ignorant.” Special App’x at SA-12. “There’s no such thing as 

a religious exemption,” they said, and Plaintiffs—all of whom 

received valid exemptions from the State of New York—held beliefs 

that “were debunked years ago.” Id. at SA-13. The officials’

justification for the mass quarantine was based on their concerns 

about the spread of measles during the “Easter and Passover 

1 At first, the County’s temporary orders of exclusion—which 

included neither medical nor religious exemptions—targeted only schools 

that actually had measles cases. But the First Exclusion Order relied on 

supposed “mapping technology” to select schools that had no connection 

to the outbreak other than proximity and vaccination rates below 70%. 

Special App’x at SA-7. These criteria necessarily targeted nearby schools 

with high numbers of religious objectors, especially in the Hasidic 

community. Cf. Agudath Isr. of Am. v. Cuomo, 983 F.3d 620, 624 (2d Cir. 

2020) (Governor segmenting population into “zones” with varying 

religious constituencies). And once vaccination rates increased in those 

schools, officials simply moved the goalposts, requiring higher percentage 

thresholds. After this sort of targeting was no longer possible (because the 

County imposed a broad-based, County-wide order via the Emergency 

Declaration), the County included a medical exemption, while students 

with religious objections were still subject to the mandate.
2

holidays.” Id. at SA-12. Even at oral argument before this Court, 

Defendants’ counsel questioned Plaintiffs’ “so-called religious 

beliefs.” Oral Arg. Tr. at 22:10.

I agree with the majority that the district court erred by 

granting summary judgment for Defendants and by dismissing 

Plaintiffs’ claims. Plaintiffs did not move for summary judgment, so 

we are not presented today with the question whether they would 

have prevailed if they had done so. The majority refrains from 

applying Employment Division v. Smith, 494 U.S. 872 (1990), finding 

close factual issues to be resolved at trial. But in my view, a 

straightforward application of Smith to facts not in dispute shows that 

the Emergency Declaration was neither neutral nor generally 

applicable.

The Emergency Declaration was not neutral because its 

“object” was to burden Plaintiffs’ choices “at least in part because of 

their religious character.” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 

2407, 2422 (2022) (citation omitted). A review of the “historical 

background,” “contemporaneous statements made by members of 

the decisionmaking body,” and the “specific series of events leading 

to the enactment” of the Emergency Declaration reveals its 

discriminatory object. Lukumi, 508 U.S. at 540. County Executive 

Day publicly defended the Declaration as an effort to address the risk 

of rising measles cases during religious holidays, and he made 

numerous disparaging comments about religious objectors as part of 

his effort to repeal the religious exemption from the statewide vaccine 

mandate. See Maj. Op. at 16–17. 

Moreover, the Emergency Declaration was not generally 

applicable because, by allowing a medical exemption, it “prohibit[ed] 
3

religious conduct while permitting secular conduct that 

undermine[d] the government’s asserted interests in a similar way.” 

Fulton v. City of Phila., 141 S. Ct. 1868, 1877 (2021); see also Tandon v. 

Newsom, 141 S. Ct. 1294, 1296 (2021) (“Comparability is concerned 

with the risks various activities pose, not the reasons” for them.). 

The County even conceded at oral argument that children who were 

medically exempted from the mandate were given free rein 

throughout the County, even though they posed identical risks to the 

public as children seeking a religious exemption. 

The Emergency Declaration was neither neutral nor generally 

applicable and should thus be subject to strict scrutiny under Smith.

The district court erred by applying rational-basis review in the first 

instance. See Lukumi, 508 U.S. at 546. 

Although the district court applied strict scrutiny in the 

alternative, it improperly deferred to the “Defendants’ authority as 

elected representatives to use their best judgment.” Special App’x at 

SA-62. Courts “may not defer” to the executive on constitutional 

questions “simply because he is addressing a matter involving science 

or public health.” Agudath Isr. of Am. v. Cuomo, 983 F.3d 620, 635 (2d 

Cir. 2020); see Lukumi, 508 U.S. at 546 (noting that strict scrutiny

should not be “watered . . . down but really means what it says” 

(cleaned up)).

The majority opinion does not address whether the record 

already supports a conclusion that the Emergency Declaration fails 

strict scrutiny and Plaintiffs would thus be entitled to summary 

judgment. On that understanding, I join the majority in vacating the 

grant of summary judgment for Defendants and remanding for trial 

on Plaintiffs’ free-exercise claim. 
4

I note two additional points. First, during the events at issue 

in this case, New York amended its school-vaccination requirements 

to eliminate the state’s religious exemption altogether—while still 

allowing medically exempt students to enter school classrooms. See 

2019 N.Y. Laws ch. 35, § 1 (repealing N.Y. Pub. Health Law § 2164(9)). 

Indeed, Defendants made their derogatory comments about 

Plaintiffs’ religious beliefs while lobbying New York state legislators 

to repeal the religious exemption (after enforcement of the Emergency 

Declaration had been enjoined2 ). New York’s school-vaccination 

laws are now an extreme outlier.3 We have not yet had occasion to 

review the constitutionality of New York’s new regime.4

Second, this case highlights the difficulty of applying Smith. 

General applicability turns on whether an exception “undermines the 

purposes of the law” at issue or “undermines the government’s 

asserted interests in a similar way” that a requested religious 

exemption would. Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d 

2 See W.D. v. Cnty. of Rockland, 101 N.Y.S.3d 820 (Sup. Ct. 2019).

3 See States with Religious and Philosophical Exemptions from School 

Immunization Requirements, Nat’l Conf. St. Legislatures (May 25, 2022), 

https://www.ncsl.org/research/health/school-immunization-exemptionstate-laws.aspx (listing only six states with neither religious nor personalbelief exemptions, three of which repealed such exceptions within the last 

few years).

4 In accordance with Smith, we said that “New York could 

constitutionally require that all children be vaccinated in order to attend 

public school” and that the state “goes beyond what the Constitution 

requires by allowing an exemption for parents with genuine and sincere 

religious beliefs.” Phillips v. City of N.Y., 775 F.3d 538, 543 (2d Cir. 2015). 

But we have never said that allowing some unvaccinated students (i.e., those 

with medical exemptions) to mingle with their peers in schools, while 

excluding religious objectors, would be constitutional. 
5

Cir. 2004) (Alito, J.); Fulton, 141 S. Ct. at 1877. But laws can have 

various purposes and advance various interests. The Emergency 

Declaration, for example, could be viewed as an effort aimed 

narrowly at preventing the spread of measles, broadly at promoting 

public health, or something in between at both stopping the spread 

and “encouraging vaccination of all those for whom it was medically 

possible.” Special App’x at SA-52. The more narrowly a law’s 

purpose is construed, the more difficult it is for an exception to 

undercut it—at a granular enough level, the purpose of any law is 

simply to “appl[y] to everything it applies to.” Douglas Laycock & 

Steven T. Collis, Generally Applicable Law and the Free Exercise of 

Religion, 95 Neb. L. Rev. 1, 16 (2016). Conversely, a law’s purpose 

could be framed broadly—for example, “to promote public health”—

so that an exception would rarely undermine it. See Does 1–3 v. Mills, 

142 S. Ct. 17, 20 (2021) (Gorsuch, J., dissenting from denial of 

application for injunctive relief) (“[A]n error this Court has long 

warned against [is] restating the State’s interests . . . at an artificially 

high level of generality.”). 

In short, the general-applicability test embraces a purposivist 

approach that is vulnerable to manipulation and arbitrariness. And 

although the inquiry is highly malleable, the consequences are 

entirely inflexible: Pass the test and the law faces only rational-basis 

review; fail, and it is subject to strict scrutiny. See Fulton, 141 S. Ct. 

at 1876. At least with ordinary analysis under the tiers of scrutiny, 

constitutional burdens can be weighed against the government’s 

interests as a whole. But with Smith, the inquiry is all-or-nothing—

an exception either undermines a law’s particular, overriding 

“purpose,” or it does not. See id.
6

Unlike recent cases arising from governmental responses to the 

COVID-19 pandemic, this appeal comes to us free from the exigencies 

of emergency motion practice and with the benefit of a summaryjudgment record. The majority’s careful opinion rightly holds based 

on the record below that the district court’s grant of summary 

judgment for Defendants was in error. But courts will continue to 

struggle in cases raising similar issues in emergency proceedings 

when timeframes are short, records are undeveloped, and the science 

is uncertain. Until Smith is overruled, its ill-defined test means that 

free-exercise rights risk being perennially trumped by “the next 

crisis.” Dr. A v. Hochul, 142 S. Ct. 2569, 2571 (2022) (Thomas, J., 

dissenting from denial of certiorari). For today at least, our Court 

has not fallen into that trap, and I join its opinion in full.