Our leadership
Learn more
We talk about the claims made in a complaint, but it is interesting when the very name of the plaintiff states a claim. Today we discuss another vaccine case, and it is called We the Patriots USA, Inc. v. Makin, 2026 WL 3319858(1st Cir. Nov. 3, 2026). The opinion came out on Election Day, and is a published First Circuit decision – with a dissent from a Trump appointed judge – refusing to grant injunctive relief to an antivax group and a member who refused, allegedly on religious grounds, to comply with Maine’s public school vaccination requirements.
The plaintiffs (the Patriots group and an individual member) sued to enjoin Maine schools from enforcing vaccination requirements against the plaintiffs’ children. The complaint was premised on First Amendment free exercise grounds. The chief authorities relied upon by the plaintiffs were three SCOTUS cases:
Wisconsin v. Yoder (1972)(schools could not require Amish children to enroll up through age 16); Mahmoud v. Taylor (2025)(schools using LGBTQ+ inclusive storybooks must provide notice to parents and allow for opt-outs); and Mirabelli v. Bonta (2026)(enjoining California limits on parental notice re school facilitated gender transitioning).
That trio of SCOTUS decisions did not persuade the district court, which denied the plaintiffs’ request for a temporary restraining order and preliminary injunction. It also did not persuade two of the three members of the First Circuit panel. The majority holding was that the plaintiffs “have not made the necessary heightened showing of a likelihood of success on the merits.” Neither the constitution nor any federal law requires religious exceptions to public school vaccination requirements. The majority distinguished Yoder, Mahmoud, and Mirabelli because Maine’s vaccination law does not require any student to submit to school-facilitated instruction that impacts religious belief. Vaccination requirements have no religious content and thus do not trigger strict scrutiny. Thus, a parent cannot claim freedom from compulsory vaccination for the child any more than for himself on religious grounds. And, yes, the We the Patriots case also relied on Jacobson.
The majority acknowledged that the plaintiffs on appeal managed to show that there was “emerging law” in this area, but “the existence of emerging law that may be distinguishable is not enough to warrant the extraordinary relief of an injunction pending appeal.”
By contrast, the dissenting judge (Dunlap) rejected the narrow reading of Yoder, Mahmoud, and Mirabelli as “limiting strict scrutiny to instances in which a school directly inculcates values contrary to the parents’ beliefs.” If strict scrutiny applies, then, according to the dissent, likelihood of success is established. Then, looking to the harms to the parties and public interest, the dissent found an obvious harm to the children in missing school, and no real harm to public health because the schools already provided for a grace period and already furnished an out for certain categories of religious objectors.
We are not in anyway suggesting that the dissenter’s opinion reflects any sort of bias. But it certainly was not hard to not predict, given the prior publications listed on the Judge’s Westlaw page:
2021 – Author, A Venerable Bulwark: Reaffirming the Primacy Approach to Interpreting Maine’s Free Exercise Clause, 73 Me. L. Rev. 1
2020 – Author, Class Actions: A Survey and Comparison of Federal Law and Maine State Law, Lexis Practice Advisor
2020 – Co-Author, First Circuit chapter, Survey of Federal Class Action Law: A Circuit-By-Circuit Analysis, ABA Publishing
2007 – Note, When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception, 82 Notre Dame L. Rev. 2005
2005 – Co-Author, Taking Accommodation Seriously, Cato Sup., Ct. Rev. 257, 2005-2006.
We all have our priors. Those priors can be honestly earned. And there is nothing wrong with consistency – except, maybe, when it becomes the hobgoblin that Ralph Waldo Emerson warned against. In any event, we sometimes tell clients that on certain issues in front of certain judges, we will be running uphill. In this free exercise case, if we were representing Maine officials, we would have told our client that getting the vote of the judge who ended up writing the dissent was the equivalent of scaling Pointe du Hoc in Normandy.
These vaccination cases keep coming. As the First Circuit majority acknowledged, there is “emerging law.” As it keeps emerging, we will keep writing about it.