Kansas Attorney General Opinion 2012-019

August 28, 2012
ATTORNEY GENERAL OPINION NO. 2012- 19
The Honorable Bob Marshall
Senator, Thirteenth District
P.O. Box 1131
Fort Scott, KS 66701
Re: 	Constitution of the United States—Amendments to the U.S. Constitution—
Amendment 1—Freedom of Religion, Speech and Press; Schools; Health
Tests 	and 	Inoculations; 	Alternatives; 	Parent 	or 	Guardian 	Statement;
Adherent of a Religious Denomination
Constitution of the State of Kansas—Bill of Rights—Religious Liberty;
Schools; Health Tests and Inoculations; Alternatives; Parent or Guardian
Statement; Adherent of a Religious Denomination
Schools—Health Programs—Health Tests and Inoculations; Certification
of 	Completion 	Required, 	Alternatives; 	Parent 	or 	Guardian 	Statement;
Adherent of a Religious Denomination; Constitutionality
Synopsis: 	The 	alternative 	to 	mandatory 	inoculations 	provided 	by 	K.S.A. 	72-
5209(b)(2) 	does 	not, 	on 	its 	face, 	require 	membership 	in 	a 	religious
organization 	or 	give 	preferential 	treatment 	to 	particular 	religious
organizations, and therefore does not violate the First Amendment of the
United States Constitution. In addition, K.S.A. 72-5209(b)(2) does not, on
its face, infringe upon, control, or interfere with any person’s right to
worship 	or 	act 	in 	accordance 	with 	religious 	conscience; 	compel 	any
person to attend or support any form of worship; or give preference to any
religious establishment, and therefore does not violate Section 7 of the
Kansas Constitution’s Bill of Rights. Cited herein: K.S.A. 72-5209; 72-
5211a; Kan. Const., Bill of Rights, § 7; U.S. Const., Am. 1.
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Bob Marshall
Page 2
Dear Senator Marshall:
As Senator for the Thirteenth District, you seek our opinion on whether the alternative to
pupil inoculation provided in K.S.A. 72-5209(b)(2) violates the religious liberty provisions
of the United States and Kansas Constitutions by requiring membership in an organized
religion.
The First Amendment to the United States Constitution states in part: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof . . . .”1 Section 7 of the Bill of Rights of the Kansas Constitution states in relevant
part:
The right to worship God according to the dictates of conscience shall
never be infringed; nor shall any person be compelled to attend or support
any form of worship; nor shall any control of or interference with the rights
of conscience be permitted, nor any preference be given by law to any
religious establishment or mode of worship. . . .
Pursuant to K.S.A. 72-5209(a), prior to admission to and attendance at school, every
pupil enrolling in any school for the first time in Kansas must provide certification that
the pupil has received tests and inoculations deemed necessary by the secretary of the
Kansas Department of Health and Environment. 2 A pupil who has not complied with the
requirements of K.S.A. 72-5209(a) may be excluded from school attendance until such
time as the pupil is in compliance with the statute.3
K.S.A. 72-5209(b) provides two alternatives to the certification requirement of K.S.A. 72-
5209(a). The first alternative allows a pupil to present an annual written statement from
a licensed physician stating that the pupil’s physical condition is such that the required
tests or inoculations would seriously endanger the pupil’s life or health. 4 The other
alternative requires the pupil to present “a written statement signed by one parent or
guardian that the child is an adherent of a religious denomination whose religious
teachings are opposed to such tests or inoculations.” 5
Our office has previously considered whether this statute violates parental and religious
rights. In Attorney General Opinion No. 94-162, Attorney General Robert Stephan
concluded that K.S.A. 1993 Supp. 72-5209, as amended by L. 1994, Ch. 206, § 3, does
not permit a parent to object to mandatory tests and inoculations based upon the
parent’s personal, non-religious beliefs:
1 U.S. Const., Am. 1.
2 Pursuant to K.A.R. 28-1-20, pupils must receive the following vaccinations prior to enrollment in school:
diphtheria; hepatitis B; measles (rubeola); mumps; pertussis (whooping cough); poliomyelitis; rubella
(German measles); tetanus; and varicella (chickenpox).
3 K.S.A. 72-5211a(a).
4 K.S.A. 72-5209(b)(1).
5 K.S.A. 72-5209(b)(2).

Bob Marshall
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First . . . the statute specifies that the religious belief must be that of the
child and not the parent. Secondly, even if the objections mentioned were
the child’s, personal convictions and moral attitudes do not equate to “a
religious denomination whose teachings are opposed to such tests and
immunizations . . . .”6
Attorney General Stephan opined that the statute is constitutional even though it does
not allow an exception for a parent’s personal beliefs that are non-religious in nature.
Attorney General Stephan further noted that there is a wide body of case law to support
compulsory vaccinations as a valid exercise of state police power, even when such
mandates 	infringe 	upon 	constitutional 	rights; 	religious 	exemptions 	to 	compulsory
vaccination are not constitutionally required. 7 However, that opinion did not address the
specific question you pose; namely, whether the alternative to mandatory inoculations
authorized by K.S.A. 72-5209(b)(2) is only available to children who are members of an
organized religion.
To answer 	your question, we apply rules of 	statutory construction to K.S.A. 72-
5209(b)(2). The fundamental rule to which all other rules are subordinate is that the
intent of the legislature governs if that intent can be ascertained. 8 When construing a
statute, legislative intent must be derived from the language of the statute; where the
language used is plain and unambiguous, courts must follow the intent as expressed by
the words used. 9 Words in common usage should be given their natural and ordinary
meaning during statutory construction. 10 A statute is presumed constitutional and all
doubts must be resolved in favor of its validity. 11 If there is any reasonable way to
construe a statute as constitutionally valid, the court must do so.12
In the absence of a specific factual scenario to which your question applies, we consider
K.S.A. 72-5209(b)(2) on its face. To qualify for the exception in K.S.A. 72-5209(b)(2), a
pupil must present a written statement “that the child is an adherent of a religious
denomination whose religious teachings are opposed to such tests or inoculations.” 13
Adherent is ordinarily defined as “a believer in or advocate especially of a particular idea
or church.”14 Member is ordinarily defined as “a person baptized or enrolled in a
church.”15 These terms are not synonymous; a person may be an adherent of a
religious denomination without being an actual member of such denomination. Thus, we
6 Internal citations omitted.
7 See Zucht v. King, 260 U.S. 174 (1922); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Wright v.
DeWitt School District No. #1, 385 S.W.2d 644 (Ark.1965); Davis v. State, 451 A.2d 107 (Md.App.1982);
Syska v. Montgomery Cty. Bd. of Ed., 415 A.2d 301 (Md.App.1980); Brown v. Stone, 378 So.2d 218
(Miss.1980); Board of Education of Lake Mountain v. Maas, 152 A.2d 394 (N.J.1959); McCartney v.
Austin, 293 N.Y.S.2d 188 (1968); Itz v. Penick, 493 S.W.2d 506 (Tex.1973).
8 See, e.g., Steffes v. City of Lawrence, 284 Kan. 380, 386 (2007).
9 See, e.g., Fisher v. State Farm Mut. Auto Ins. Co., 264 Kan. 111, 118 (1998).
10 See, e.g., Appeal of Boeing Co., 261 Kan. 508, 515 (1997).
11 See, e.g., Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243 (1992).
12 Id.
13 Emphasis added.
14 http://www.merriam-webster.com/dictionary/adherent.
15 http://www.merriam-webster.com/dictionary/member.

Bob Marshall
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opine that the plain and unambiguous language of K.S.A. 72-5209(b)(2) does not limit
the religious alternative to mandatory tests and inoculations to members of religious
denominations.
Having so opined, we examine the constitutionality of K.S.A. 72-5209(b)(2) in light of the
First Amendment. While no Kansas court has addressed your specific question, other
states have determined that some religious exemption statutes are unconstitutional
under the First Amendment. In Sherr v. Northport-East Northport Union Free School
District, 16 the court examined a New York statute that limited its religious exemption to
mandatory inoculations to “bona fide members of a recognized religious organization.” 17
Holding that the statute violates both the Establishment Clause and the Free Exercise
Clause of the First Amendment, the court noted:
The 	primary 	effect 	of 	[the 	statute]'s 	limiting 	clause 	is 	manifestly 	the
inhibiting 	of 	the 	religious 	practices 	of 	those 	individuals 	who 	oppose
vaccination of their children on religious grounds but are not actually
members of a religious organization that the state recognizes. . . . Here,
New 	York 	has 	conditioned 	the 	conferring 	of 	a 	statutorily 	created
exemption on membership in a religious denomination upon which the
state, if the attempted witticism can be forgiven, has bestowed a blessing
of governmental approval. [The statute] makes available to members of
certain religious organizations to which the state has given some sort of
official recognition a statutory benefit for which other individuals who may
belong to either an unrecognized religious group or possess their own
personal religious beliefs are not eligible. 18
Thus, limiting the exemption to “bona fide members” discriminates against parents who
choose not to become official members of a religious organization, in violation of the
Free 	Exercise 	Clause. 	Likewise, 	limiting 	the 	exemption 	to 	“recognized” 	religious
organizations means that the government must prefer or approve of certain faiths over
others, in violation of the Free Exercise Clause and the Establishment Clause.
In a later case, Boone v. Boozman, 19 the court considered an Arkansas statute that
permitted parents to object to required immunizations “on the grounds that immunization
conflicts with the religious tenets and practices of a recognized church or religious
denomination of which the parent or guardian is an adherent or member.”20 The court
determined that by limiting the exception to “recognized” churches and denominations,
the statute “singles out ‘recognized churches’ for preferential treatment,” and therefore
violates the First Amendment.21
16 672 F.Supp. 81 (E.D.N.Y. 1987).
17 N.Y. Pub. Health L. §2164(9). The statute was amended by L. 1989, Ch. 583, §3 to allow parents who
“hold genuine and sincere religious beliefs” to exempt their children from mandatory immunizations.
18 672 F.Supp. at 89-90. Citations omitted.
19 217 F.Supp.2d 938 (E.D. Ark. 2002).
20 Ark. Code Ann. § 6-18-702(d)(2) (Repl. 1999). Emphasis added.
21 217 F.Supp.2d at 947.

Bob Marshall
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The 	holdings 	in 	Sherr 	and 	Boone 	indicate 	that 	a 	religious 	exemption 	statute 	is
vulnerable to a challenge on Free Exercise or Establishment Clause grounds if it limits
the exemption to actual members of a religious organization or to religious groups that
are “recognized” by the state. Although these cases do not involve Kansas statutes, we
find the reasoning therein persuasive. Plainly, K.S.A. 72-5209(b)(2) does not limit its
application to adherents of state-recognized religious organizations. Further, the statute
does not require bona fide membership in a religious organization because the terms
“adherent” and “member” are not synonymous. Accordingly, we conclude that the
statute does not violate the First Amendment.
We next consider K.S.A. 72-5209(b)(2) in light of Section 7 of the Bill of Rights of the
Kansas Constitution, which provides much more detail respecting religious freedom
than the First Amendment. 22 Specifically, this section prohibits the state from (1)
infringing upon the right to worship God according to the dictates of conscience; 	(2)
compelling any person to attend or support any form of worship; (3) controlling or
interfering with the rights of conscience; and (4) giving any preference by law to any
religious establishment or mode of worship.
It has been suggested that the “rights of conscience” clause is not expressly limited to
religious conscience, and therefore protects beliefs that are non-religious in nature. No
Kansas court has defined “rights of conscience” as it pertains to the state constitution,
but we find persuasive analysis in cases from Ohio and Minnesota, whose state
constitutions contain similar religious freedom provisions.23
Ohio courts have held that the Ohio Constitution does not recognize a general right of
conscience unconnected to the exercise of religious freedom. 24 The Ohio Constitution
protects the rights of conscience “only when predicated upon bona fide religious beliefs,
even though the word ‘conscience’ in a secular sense necessarily includes moral and
philosophical 	views 	not 	within 	the 	confines 	of 	established 	religion.” 25 Similarly,
Minnesota courts have declined to interpret the Minnesota Constitution’s “rights of
conscience” clause to include a non-religious belief that a person must tell the truth, 26
but have determined that the clause does protect a business owner’s right to refuse to
provide services to an organization based upon the business owner’s religious beliefs. 27
We are persuaded by this reasoning and therefore opine that the “rights of conscience”
clause in Section 7 of the Bill of Rights of the Kansas Constitution does not protect
secular beliefs that are unconnected to the exercise of religious freedom.
22 State v. Smith, 155 Kan. 588, 594 (1942).
23 “ . . . [the court] should look to the Ohio and Minnesota courts for guidance because the provisions of
their respective state constitutions on religious liberties are similar to § 7 of the Kansas Constitution Bill of
Rights.” Stinemetz v. Kansas Health Policy Authority, 45 Kan. App. 2d 818, 849 (2011).
24 See, e.g., Luken v. Brigano, 154 Ohio App. 3d 531 (2003); Humphrey v. Lane, 89 Ohio St. 3d 62
(2000); Preterm Cleveland v. Voinovich, 89 Ohio App. 3d 684 (1993).
25 89 Ohio App. 3d at 697.
26 State v. Schwartz, 598 N.W.2d 7 (1999).
27 Rasmussen v. Glass, 498 N.W. 2d 508 (1993).

Bob Marshall
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When a party asserts a facial challenge to the constitutionality of a statute, courts do not
consider 	whether that statute is 	authorized 	by 	the constitution, but whether it is
prohibited thereby. 28 On its face, K.S.A. 72-5209(b)(2) does not infringe upon, control,
or interfere with any person’s right to worship or act in accordance with religious
conscience. The statute also does not compel any person to attend or support any form
of worship or give preference to any religious establishment. Accordingly, we conclude
that K.S.A. 72-5209(b)(2) is not prohibited by Section 7 of the Bill of Rights of the
Kansas Constitution.
Sincerely,
Derek Schmidt
Kansas Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb
28 See, e.g., In re Weisgerber, 285 Kan. 98, 102 (2007).