they are entitled to the exemption from immunizations provided in § 2164(9); (2) a permanent injunction preventing defendant from violating plaintiffs' constitutional rights; and (3) damages in the amount of $ 1 million for violation of their constitutional rights, together with costs and disbursements of this action, including reasonable attorney's fees pursuant to 42 U.S.C. § 1988. On that same day, plaintiff brought an order to show cause seeking a temporary restraining order and a preliminary injunction enjoining defendant from barring the infant plaintiffs from attending school during the pendency of this action. As noted above, this Court issued a TRO that same day, and held a hearing on plaintiffs' request for a preliminary injunction on December 2, 1993.
As noted above, at the December 2 hearing, this Court heard testimony from Kathryn and David Berg, on behalf of plaintiffs, and from Rabbi Howard Jachter, on behalf of defendant. At the close of the hearing, this Court reserved decision pending receipt of certain medical and dental records of plaintiffs. Upon the consent of the parties, the Court directed that the TRO remain in effect pending the decision on the request for a preliminary injunction. The Court eventually received all of the requested medical and dental records by May 1993, as well as the parties' further submissions concerning those records.
In the Second Circuit, to obtain a preliminary injunction, the moving party must show: "'(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly toward the party requesting the preliminary relief.'" Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 679 (2d Cir. 1988) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)).
As for the second prong of this analysis, defendant, relying on Abdul Wali v. Coughlin 754 F.2d 1015, 1026 (2d Cir. 1985), argues that plaintiffs must show a "substantial" likelihood of success on the merits, not merely "likelihood of success on the merits," because the relief they seek by way of the preliminary injunction is "the same relief ultimately sought in the action herein." Affidavit of Robert E. Sapir, P 18.
Defendant's argument is without merit. In Abdul Wali, the Second Circuit imposed this higher burden where the preliminary injunction plaintiffs sought was not merely to maintain the status quo, but for "substantially all of the relief they ultimately seek." 754 F.2d at 1025-26. This is not the case here. To grant the preliminary injunction will not afford plaintiffs substantially all the relief they seek on the merits. While a preliminary injunction would allow the infant plaintiffs to attend and remain in school without being immunized, plaintiffs will have to prevail on their request for a permanent injunction for the infant plaintiffs to continue thereafter in school without being immunized.
Defendant properly does not contend that plaintiffs cannot show irreparable harm. As the Supreme Court has stated: "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); see also Deeper Life, 852 F.2d at 679. Accordingly, plaintiffs meet this requirement for a preliminary injunction.
Before a discussion of the merits, the Court notes that in Sherr v. Northport-East Northport Union Free School Dist., 672 F. Supp. 81 (E.D.N.Y. 1987), this Court declared that the predecessor of § 2164(9) violated both the establishment and free exercise clauses of the First Amendment. The earlier version of § 2164(9) required that the parent or guardian seeking the exception be a "bona fide member of a recognized religious organization" whose doctrines oppose such immunizations. In response to this Court's Sherr decision, the New York legislature amended § 2164(9) to require that the parent or guardian "hold genuine and sincere religious beliefs which are contrary to the practices herein required." Because the statutory exception is for persons whose opposition to immunizations stems from religious beliefs, it does not extend to persons whose views are founded upon, for instance, "medical or purely moral considerations," Sherr, 672 F. Supp. at 92, "scientific and secular theories," or "philosophical and personal" beliefs. Mason v. General Brown Cent. School Dist., 851 F.2d 47, 51-52 (2d Cir. 1988). Thus, this Court must first determine whether plaintiffs' purported beliefs are "religious." Only if they are, then this Court must determine whether those beliefs are genuinely and sincerely held. Moreover, the Court is mindful that attempts to ascertain the sincerity of claims of religious belief must be undertaken with extreme caution. See International Society for Krishna Consciousness, Inc. v. Barber 650 F.2d 430, 441 (2d Cir. 1981). In Barber, the Second Circuit observed:
Sincerity analysis seeks to determine the subjective good faith of an adherent. . . . The goal, of course, is to protect only those beliefs which are held as a matter of conscience. Human nature being what it is, however, it is frequently difficult to separate this inquiry from a forbidden one involving the verity of the underlying belief.