RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TARA NIKOLAO, ┐
Plaintiff-Appellant, │
│
│
v. > No. 17-1367
│
│
│
NICK LYON, individually and in his official capacity as │
Director of the Michigan Department of Health and │
Human Services; WAYNE COUNTY DEPARTMENT OF │
HEALTH, VETERANS, AND COMMUNITY WELLNESS, DR. │
MOUHANAD HAMMAMI, individually and in his official │
capacity as Director of the Wayne County Department │
of Health, Veterans, and Community Wellness, and │
CAROL AUSTERBERRY, individually and in her official │
capacity as Division Director and Deputy Health │
Officer of the Wayne County Department of Health, │
Veterans, and Community Wellness. │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:16-cv-12545—Linda V. Parker, District Judge.
Argued: October 12, 2017
Decided and Filed: November 7, 2017
Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for
Appellant. Darrin F. Fowler, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee Nick Lyon. Davidde A. Stella, WAYNE COUNTY CORPORATION
COUNSEL, Detroit, Michigan, for Appellees Wayne County, Hammami, and Austerberry. ON
No. 17-1367 Nikolao v. Lyon, et al. Page 2
BRIEF: Kate Oliveri, Brandon Bolling, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellant. Darrin F. Fowler, Mark A. Gabrielse, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee Nick Lyon. Davidde A. Stella,
WAYNE COUNTY CORPORATION COUNSEL, Detroit, Michigan, for Appellees Wayne
County, Hammami, and Austerberry.
SUHRHEINRICH, J., delivered the opinion of the court in which GRIFFIN, J., joined,
and KETHLEDGE, J., joined in the result. KETHLEDGE, J. (pg. 12), delivered a separate
opinion concurring in the judgment.
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OPINION
_________________
SUHRHEINRICH, Circuit Judge. The state of Michigan mandates that school-age
children be vaccinated prior to entering the public school system. It also offers exemptions from
this requirement for certain medical and nonmedical reasons. However, in order to get an
exemption, a parent must first visit a local health department and explain the basis for his or her
objection. A devout Catholic, Plaintiff-Appellant Tara Nikolao (“Nikolao”) sought a vaccination
waiver for her children for religious reasons. At the mandatory meeting, two Wayne County
nurses tried to disabuse Nikolao of the notion that her Catholic faith prevented her from
vaccinating her children, but Nikolao ultimately received the waiver. Nonetheless, she sued state
and county officials for violations of the First Amendment’s religion clauses. The district court
granted Defendants’ motion to dismiss. We affirm in part and vacate and remand in part.
I. BACKGROUND
The following facts are taken as true for purposes of Nikolao’s appeal from the district
court’s dismissal under Rule 12(b)(6):
Michigan state law requires parents and guardians to vaccinate their children prior to
entering public school. Mich. Comp. Laws § 333.9205. However, parents may seek exemptions
from the mandatory vaccination law if they object “because of religious convictions or other
objection to immunization.” Id. § 333.9215(2). In December 2014, the Michigan Department of
Health and Human Services (“MDHHS”) passed a rule requiring parents asking for vaccination
exemptions on behalf of their children to visit a county health office to discuss their objections
No. 17-1367 Nikolao v. Lyon, et al. Page 3
with a local health worker. Mich. Admin. Code r. 325.176(12) (“Certification Rule”). The
health worker must certify that the parent has “received education on the risks of not receiving
the vaccines being waived and the benefits of vaccination to the individual and the community.”
Id. Moreover, Michigan has published a series of “Waiver Notes” that contain responses to
many common objections to vaccination. Local health workers are instructed to use these Notes
and to give them to objecting parents for review. Waiver Notes are also available online to the
general public.
In October 2015, Nikolao went to the Wayne County health department to get an
exemption. As a devout Catholic, Nikolao maintains that she cannot use vaccines “‘which have
moral problems,’ such as those created from aborted fetal cells.” R. 1, ID# 36. Further, she
believes “the body is a temple and injecting it with chemicals that alter the person permanently
violates the will of God.” R. 1, ID# 37.
Nikolao met with two Wayne County nurses, Jane Does 1 and 2.1 The nurses pressed
Nikolao for more information. At one point, Jane Doe 2 issued her an ultimatum, telling Nikolao
that she must “declare what religion she practices, explain her religious beliefs, and engage in a
back and forth discussion . . . concerning her religious objection.” R. 1, ID# 51. She also told
Nikolao that “there are no religions that have objections to vaccines.” R. 1, ID# 51 (emphasis
omitted). Finally, Nikolao was given the state’s Religious Waiver Note—a document
responding to common religious objections to vaccination—for review. The Religious Waiver
Note contained a quote falsely attributed to Pope Benedict XVI stating that parents who chose
not to vaccinate their children “would be in ‘more proximate cooperation with evil’ than those
who gave their children the vaccines in question because of the life saving nature of vaccines.”
R. 1, ID# 28. In reality, Monsignor Jacques Suaudeau, a doctor at the Pontifical Academy for
Life, made these statements. R. 1, ID# 30.
Nikolao did not yield to the nurses’ pressure, and she was given her exemption.
However, on the form noting her compliance with the Certification Rule, the nurses wrote that
1
Jane Does 1 and 2 have not been served in these proceedings and are thus not parties to this appeal.
No. 17-1367 Nikolao v. Lyon, et al. Page 4
Nikolao had objected because she wanted her “child to have natural immunity.” R. 11, Ex. 1.
Nikolao wanted the form to report her religious objection specifically.
Nikolao filed this lawsuit against both state and county actors under 42 U.S.C. § 1983,
challenging the treatment she received during the certification process. She claimed that the
state and county violated her First Amendment religious rights by forcing her to take time off
from work, travel to and from the health department office, undergo the nurses’ questioning, and
by failing to properly memorialize her objection. Nikolao also brought state law claims under
the religious protections of the Michigan Constitution, see Mich. Const., Art. 1, § 4, as well as
under Mich. Comp. Laws § 333.9215, which grants her the right to an exemption.
Nikolao named the following defendants: Nick Lyon (“Lyon”), Director of MDHHS; the
Wayne County Department of Health (“WCDH”); Dr. Mouhanad Hammami, Director of
WCDH; Carol Austerberry, Division Director and Deputy Health Officer of WCDH; and Jane
Does 1 and 2. She argued that these defendants violated her First Amendment religious rights
and sought injunctive relief that would remove the certification requirement and the Religious
Waiver Note. Nikolao also sought nominal damages.
Lyon filed motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). WCDH, Dr. Hammami, and Austerberry filed a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). The district court did not address Lyon’s Rule 12(b)(1) motion, but
granted Defendants’ motions to dismiss under Rule 12(b)(6). The district court then declined to
exercise supplemental jurisdiction over the remaining state law claims. We affirm in part and
vacate and remand in part.
II. ANALYSIS
A. Standing
In the lower court proceedings, Lyon challenged Nikolao’s standing to pursue her federal
constitutional claims. The district court did not consider those arguments, and instead dismissed
the case on the merits. Nonetheless, “we are under an independent obligation to examine [our]
own jurisdiction.” Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 620 (6th Cir. 2010)
No. 17-1367 Nikolao v. Lyon, et al. Page 5
(quoting Baird v. Norton, 266 F.3d 408, 410 (6th Cir. 2001)); see also Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 95 (1998) (“‘[E]very federal appellate court has a special obligation to
‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under
review.’”) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). “The requirement that
jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the
judicial power of the United States’ and is ‘inflexible and without exception.’” Steel Co.,
523 U.S. at 94-95 (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).
As such, we address Nikolao’s standing to pursue these claims as a threshold matter.
A federal court may only adjudicate “cases” and “controversies.” U.S. Const. art. III, § 2,
cl. 1. The standing doctrine is derived from the case or controversy requirement and obligates
plaintiffs to show a “personal stake in the outcome of the controversy as to . . . justify [the]
exercise of the court’s remedial powers on [their] behalf.” Town of Chester, N.Y. v. Laroe
Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 38 (1976)). To establish standing, a litigant must show: (i) that she has suffered an
“injury in fact”; (ii) that her injury was caused by the defendant’s conduct; and (iii) that it is
likely that the injury will be redressed by a favorable court decision. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992). Nikolao must “demonstrate standing for each claim [s]he seeks to
press.” Town of Chester, 137 S. Ct. at 1650 (quoting Davis v. Fed. Election Comm’n, 554 U.S.
724, 734 (2008)).
1. Free Exercise Clause Claim
The First Amendment states that “Congress shall make no law . . . prohibiting the free
exercise [of religion].” U.S. Const., amend. I. The Sixth Circuit has held that the Free Exercise
Clause is “predicated on coercion.” Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058, 1066
(6th Cir. 1987) (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203, 223 (1963)). As such, a
litigant suffers an injury to her free exercise rights when the state compels her “to do or refrain
from doing an act forbidden or required by one’s religion, or to affirm or disavow a belief
forbidden or required by one’s religion.” Id. Nikolao has not suffered this type of injury here.
No. 17-1367 Nikolao v. Lyon, et al. Page 6
While Nikolao has presented facts suggesting that she was exposed to religious
information with which she did not agree, she has given no indication that the information
coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a
vaccination exemption and left with one. Thus, it is clear that the state’s religious information
did not coerce her into changing her religious beliefs in order to obtain the waiver.
Moreover, she has not been denied any legal right on the basis of her religion.
Constitutionally, Nikolao has no right to an exemption. See Jacobson v. Massachusetts, 197
U.S. 11, 38 (1905) (holding that compulsory vaccination laws with only medical exemptions do
not violate any federal constitutional right). Statutorily, Michigan has provided her the right to
an exemption. Mich. Comp. Laws § 333.9215(2). But, Michigan has not given her the right to
describe the nature of her objections on her exemption form. The exemption may be granted
“because of religious convictions or other objection to immunization.” Id. In fact, this provision
makes no mention as to where or how, if at all, a parent’s objections should be noted. Thus, the
statutory right provided to Nikolao—the right to object to mandatory vaccinations and receive a
waiver as a result—is precisely what she exercised here.
Having to take time off from work to travel to and from the local health office is not a
sufficient injury for standing purposes either. This requirement does nothing to burden her
practice of religion, nor does it discriminate against religion in any way, as all parents seeking
nonmedical exemptions must go through the same process. This includes parents with entirely
non-religious objections, such as those concerned about Autism.
In short, Nikolao has not presented any facts to suggest that the state has coerced her in
her religious practices. As such, she has not suffered an injury-in-fact under the Free Exercise
Clause and does not have standing to pursue that claim. The district court’s decision as it relates
to the Free Exercise Clause is vacated and we remand this case with instructions that Nikolao’s
free exercise claim be dismissed for lack of jurisdiction.
2. Establishment Clause Claim
Unlike the Free Exercise Clause, the Establishment Clause does not require Nikolao to
show an element of coercion as part of the injury-in-fact requirement. Instead, “a plaintiff may
No. 17-1367 Nikolao v. Lyon, et al. Page 7
demonstrate an injury [under the Establishment Clause] by showing direct and unwelcome
contact with a government-sponsored religious object.” ACLU of Ky. v. Grayson Cty., 591 F.3d
837, 843 (6th Cir. 2010). Nikolao has pled facts sufficient to meet this requirement.
During her visit to the WCDH, Nikolao was given religious information both through the
Religious Waiver Note and verbally by virtue of the nurses’ questioning. The Religious Waiver
Note is a state-drafted document circulated to the county health departments to be used as it was
here. Nikolao did not welcome such contact; indeed, she actively attempted to avoid it by
declining to discuss the specifics of her religious objections. Nonetheless, she was presented
with the religious information and the Waiver Note. This alone is sufficient to satisfy the injury-
in-fact requirement of the standing inquiry for her Establishment Clause challenge. See id.
Moreover, there is no question that she can meet the causation and redressability prongs
of the standing analysis here. The state adopted the Certification Rule, which imposes the
mandatory discussion with local health workers about which Nikolao complains. The state also
drafted and circulated the Religious Waiver Note—a direct cause of her stated injuries. Further,
she seeks injunctive relief eliminating the certification process as well as discontinuing the use of
the Religious Waiver Note. These two remedies—as well as nominal damages for the violations
of her rights—would redress her injuries here. For these reasons, Nikolao has standing to pursue
her Establishment Clause Claim.
B. Merits of Establishment Clause Claim
Having concluded that Nikolao has standing to pursue her Establishment Clause claim,
we now consider the merits of that claim. The district court granted Defendants’ Rule 12(b)(6)
motion and dismissed her claim, holding that the Certification Rule has a secular purpose in
protecting children from communicable diseases. Further, the lower court reasoned that the
Certification Rule does not inhibit religion because the information that Nikolao received did not
disapprove of her religion or religion in general.
In order to withstand a Rule 12(b)(6) motion to dismiss, Nikolao’s complaint “must
contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
No. 17-1367 Nikolao v. Lyon, et al. Page 8
550 U.S. 544, 570 (2007)). While Nikolao need not plead “detailed factual allegations,” she
must provide more than a “formulaic recitation of the elements of a cause of action.” Twombly,
550 U.S. at 555. Dismissal under Rule 12(b)(6) is appropriate if the facts alleged fail to state a
claim under which relief can be granted. Iqbal, 556 U.S. at 678.
To comply with the Establishment Clause, a state law or practice must meet the following
conditions: (i) “the statute must have a secular legislative purpose”; (ii) the statute’s “principal or
primary effect must be one that neither advances nor inhibits religion”; and (iii) “the statute must
not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S.
602, 612-13 (1971) (citation omitted). Where a state law fails under any one of these three
prongs, it violates the Establishment Clause. See, e.g., Smith v. Jefferson Cty. Bd. of Sch.
Comm’rs, 788 F.3d 580, 586 (6th Cir. 2015). Nikolao argues that the Certification Rule and the
Religious Waiver Note violate each of these three prongs.
Specifically, she contends that the Certification Rule and the Religious Waiver Note are
designed to “educate parents away from their religious beliefs with skewed, false, and
misleading religious education.” She also argues that this process both inhibits religion and
impermissibly entangles the state with religious operations.
1. Certification Rule
Michigan’s Certification Rule does not violate the Establishment Clause. First, the
purpose of the Certification Rule is plainly secular. The Certification Rule is designed to protect
the health and safety of public school children through extensive vaccinations. Where a parent
wishes not to vaccinate his or her child, Michigan educates that parent regarding the risks
associated with that decision. This is done in an effort to get parents to reconsider and,
ultimately, to get more children vaccinated. The endgame is widespread vaccination, which is
necessary, indeed essential, to promote adequate immunity.
The importance of extensive vaccination should not be understated—the efficacy of
vaccination relies on the theory of “herd immunity.” In essence, once a critical mass of the
population is immune to a particular disease, the chance that unvaccinated individuals contract
that disease drastically decreases. See Dina Nathanson, Herd Protection v. Vaccine Abstention:
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Potential Conflict Between School Vaccine Requirements and State Religious Freedom
Restoration Acts, 42 Am. J.L. & Med. 621, 624 (2016). The critical mass needed to achieve herd
immunity varies by disease, but is uniformly large. Id. (“[T]he following immunization
thresholds are required: measles: 83-94[%]; mumps: 75-86%; rubella: 83-85%; diphtheria: 85%;
polio: 80-86%; pertussis: 92-94%; and varicella: 90%.”). Thus, to stop the outbreak of
preventable diseases in public school, the significant majority of children entering the school
system must be vaccinated. It is true that Michigan is trying to discourage parents from opting
out of vaccination—but it is only doing so to protect children from serious and avoidable
diseases. We are hard-pressed to envision a more secular purpose than this.2
Moreover, the educational requirement of the Certification Rule does nothing to promote
or inhibit a particular religion or religion in general. The requirement itself is specifically limited
to information concerning the benefits of vaccinations, rather than targeting or concerning itself
with religion.
Finally, while the Certification Rule may require state employees to discuss religion with
parents seeking religious exemptions, this does not entail “excessive government entanglement”
with religion. Determining what amounts to excessive government entanglement requires an
examination of the “character and purposes of the institutions that are benefited, the nature of the
aid that the State provides, and the resulting relationship between the government and the
religious authority.” Lemon, 403 U.S. at 615. In this case, state officials are not inserted into the
religious institution’s operations. The Certification Rule only requires local health workers to
have a conversation with objecting parents about the benefits of vaccinating children and the
potential dangers in declining to do so. As part of that conversation, the state may offer its own
take on a parent’s objections. But the Certification Rule does not allow state officials to
withhold an exemption based on the legitimacy of those objections. Were that the case, the
2
Aside from educating parents on the importance of vaccinations, the Certification Rule serves the simple
but crucial role of making it more difficult to opt out of getting vaccinated. Whereas the previous exemption rule
merely required parents to fill out and mail a form noting their objection, this new requirement imposes additional
obstacles. Considering the burden of getting certain vaccinations—Hepatitis B, for example, requires three or four
shots over a six-month period—the state has a legitimate interest in trying to tip these scales. For a discussion on the
importance of imposing hurdles to getting vaccination exemptions, see PBS, Vermont’s Rules on Vaccines for
School Met with Parents’ Support and Pushback Sept. 26, 2017), http://www.pbs.org/newshour/bb/vermonts-rules-
vaccines-school-met-parents-support-pushback/.
No. 17-1367 Nikolao v. Lyon, et al. Page 10
outcome here may very well be different. Cf. Sherr v. Northport-E. Northport Union Free Sch.
Dist., 672 F. Supp. 81, 91-92 (E.D.N.Y. 1987) (finding excessive entanglement where New York
vaccination law required state officials to determine which religious organizations were
“recognized”). However, that is not the case before us. Here, the state is merely voicing its own
opinion on religious objections in an effort prevent the outbreak of communicable diseases. This
does not rise to the level of excessive entanglement needed to sustain an Establishment Clause
challenge.
2. Religious Waiver Note
Similarly, the Religious Waiver Note does not violate the Establishment Clause. The
Note outlines a health department worker’s available responses to religious objections
concerning vaccination. To be sure, this document contains information about specific religions,
as well as the disputed Pope Benedict XVI quote. But, again, the purpose of providing this
information is secular. Michigan is attempting to promote health and safety among school-age
children by educating parents about vaccinations. Part of this education requires the state to be
able to respond to certain objections—including religious objections—by offering its own point
of view. Importantly, this process does not predicate the receipt of an exemption on a parent’s
willingness to affirm any religious information that the state offers. Indeed, the Religious
Waiver Note opens with the following “General Response:” “I understand your concern between
vaccinating your child and following your religious beliefs, but I am also concerned about the
risk to your child. Vaccine preventable diseases are still occurring.” In short, this document is
designed to promote secular goal of children’s health and safety by encouraging parents to
vaccinate their children.
In the same vein, this document does not have the primary effect of inhibiting religion.
While the purpose of the Religious Waiver Note is to provide information that might cause a
parent to reconsider getting a vaccination exemption for his or her children, this does not amount
to a disparagement of religion. As the Religious Waiver Note itself provides, health department
workers must remember that “[t]he key to this conversation is to respect [parents’] religious
views while informing them of your concerns about vaccine preventable diseases.” Neither the
document itself nor its use in the certification process lead to the inhibition of religion. Rather,
No. 17-1367 Nikolao v. Lyon, et al. Page 11
the Note provides state workers with information necessary to promote its secular goal of
vaccinating as many public school children as it can in an effort to protect the health and safety
of those children.
Finally, for the same reasons as discussed within the context of the Certification Rule’s
educational requirements, the Religious Waiver Note does nothing to foster excessive
government entanglement with religion. The Religious Waiver Note is an educational tool
provided to state employees that administer the certifications necessary for a vaccination
exemption—it does not require those employees to involve themselves with the activities of any
religious organizations. Tellingly, it also does not require state actors to determine which beliefs
are sincerely held and does not condition receipt of an exemption on such a finding.
For these reasons, Nikolao’s complaint that the Certification Rule and the Religious
Waiver Note violate the Establishment Clause fails to state a legal claim.
III. CONCLUSION
We VACATE the lower court’s judgment with respect to Nikolao’s first cause of action
under the Free Exercise Clause and REMAND the case with instructions directing that the claim
be dismissed for lack of subject matter jurisdiction. Because Nikolao has also failed to properly
allege a violation of the Establishment Clause, we AFFIRM the decision below with respect to
her second cause of action. Without any remaining federal questions, the district court properly
declined to exercise supplemental jurisdiction over the outstanding state law claims.
No. 17-1367 Nikolao v. Lyon, et al. Page 12
________________________________________
CONCURRING IN THE JUDGMENT
________________________________________
KETHLEDGE, Circuit Judge, concurring in the judgment. The problem in this case is
that the plaintiff has sued the wrong defendants. Tara Nikolao alleges that two Wayne County
nurses improperly interrogated her about her religion and showed her a “Religious Waiver Note”
that offended her. But for whatever reason Nikolao never served the nurses, and thus she gives
us no reason to opine on the constitutionality of what went on in that room.
That leaves us with Nikolao’s claims against the parties she did serve, namely the Wayne
County health department; its director, Dr. Mouhanad Hammami; one of its division directors,
Carol Austerberry; and Nick Lyon, director of the state’s Department of Health and Human
Services. As an initial matter, I think that Nikolao has standing to assert her claims because if
her claims are valid she has suffered a legal injury. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89 (1998). And on the merits I would decide this case on more narrow grounds
than the majority does. Specifically, Nikolao cannot obtain damages from any of these
defendants because she does not allege that any of them directed or approved of the nurses’
conduct, or that such conduct is customary at the Wayne County health department. See Polk
Cty. v. Dodson, 454 U.S. 312, 325-26 (1981). Moreover, none of these defendants currently
publish the Religious Waiver Note, so we have no basis to enjoin any of them from publishing it.
See Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990). Nikolao’s only remaining claim is
that the “Certification Rule”—which requires anyone seeking an exemption for any reason to
hear first about the benefits of vaccination—is unconstitutional on its face. And that claim fails
because the Rule on its face says nothing about religion.
I therefore respectfully concur in the judgment.