We the Patriots USA, Inc. v. Makin
CourtCourt of Appeals for the First Circuit
Date FiledNovember 3, 2026
Docket26-2035
StatusUnknown
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Full Opinion
United States Court of Appeals
For the First Circuit
_____________________
No. 26-2035
WE THE PATRIOTS USA, INC. and JAMES CHILDS,
Plaintiffs, Appellants,
v.
PENDER MAKIN, in the official capacity as Commissioner of the Maine Department of
Education and CARI MEDD, in the official capacity as Superintendent of Maine School
Administrative District #52,
Defendants, Appellees.
__________________
Before
Gelpí, Aframe, and Dunlap,
Circuit Judges.
__________________
ORDER OF COURT
Entered: November 3, 2026
In this case, plaintiffs We The Patriots USA, Inc. and its member James Childs move for
an injunction pending appeal of a district court’s order denying them a temporary restraining order
and a preliminary injunction. If we granted the requested injunction, it would bar the defendants
from enforcing, against Childs' son G.C. and the children of an unspecified number of We The
Patriots members who oppose vaccination on free exercise grounds, Maine's vaccination
requirements for children enrolling in elementary and secondary schools. As briefly discussed
below, the motion is denied.
Plaintiffs primarily argue that they are likely to prevail on appeal because the vaccination
requirement imposes the kind of substantial burden on parental and religious exercise rights that
triggers strict scrutiny, even assuming that the vaccination requirement is generally applicable.
They cite Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Wisconsin's law requiring public
or private school enrollment until the age of 16 violated Amish parents' Free Exercise rights), and
two recent Supreme Court decisions applying Yoder. See Mahmoud v. Taylor, 606 U.S.
522, 530, 550 (2025) (in a preliminary injunction appeal, "hold[ing] that the [Montgomery County
School] Board's introduction of the 'LGBTQ+-inclusive' storybooks — combined with its decision
to withhold notice to parents and to forbid opt outs — substantially interferes with the religious
development of their children and imposes the kind of burden on religious exercise
that Yoder found unacceptable"; "[a] government burdens the religious exercise of parents when
it requires them to submit their children to instruction that poses 'a very real threat of undermining'
the religious beliefs and practices that the parents wish to instill") (quoting Yoder, 406 U.S. at 218;
emphasis added); Mirabelli v. Bonta, 607 U.S. 492, 493, 496 (2026) (per curiam, emergency
docket) (vacating Ninth Circuit stay of permanent injunction; California's policies limiting parental
notice about their children's in-school, staff-"facilitat[ed]" gender transitioning "likely trigger strict
scrutiny under [the free exercise] provision because they substantially interfere with the 'right of
parents to guide the religious development of their children' and 'impos[e] the kind of burden on
religious exercise that Yoder found unacceptable'") (quoting Mahmoud, 606 U.S. at 550, 559).
On the district court record and the papers before us, plaintiffs have not made the necessary
heightened showing of a likelihood of success on the merits. See Bos. Parent Coal. for Acad.
Excellence Corp. v. Sch. Comm. of City of Bos., 996 F.3d 37, 44 (1st Cir. 2021) (noting that in
the posture of seeking an injunction pending appeal, "the bar is harder to clear" because "an
injunction does not simply suspend judicial alteration of the status quo but grants judicial
intervention that has been withheld by [a] lower court[ ]") (citations and internal quotation marks
omitted; alterations in original). It is not obvious that Yoder, Mahmoud, and Mirabelli govern the
situation we face given that Maine's vaccination law does not appear to require a student's
submission to school-facilitated instruction.
Relatedly, Yoder itself recognized that prior Supreme Court authority allows States to
impose the kind of broad public health initiative that underlies this appeal.
See Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905) (holding that law requiring adults to be
vaccinated did not "invad[e] any right secured by the Federal Constitution"); Zucht v. King, 260
U.S. 174, 176 (1922) (holding that law requiring school children to be vaccinated did not violate
the Due Process and Equal Protection Clauses); Prince v. Massachusetts, 321 U.S. 158, 166-67 &
n.12 (1944) (applying the balancing analysis ultimately adopted in Yoder and upholding
application of child labor laws over parent's free exercise challenge; citing Jacobson, stating in
dictum that a parent "cannot claim freedom from compulsory vaccination for the child more than
for himself on religious grounds. The right to practice religion freely does not include liberty to
expose the community or the child to communicable disease or the latter to ill health or
death"). See Perry v. Marteney, 172 F.4th 315, 327 (4th Cir. 2026) (cert. petition filed Sep. 4,
2026) (relying on Prince and Jacobson to reverse preliminary injunction in parental free exercise
challenge to West Virginia's school vaccination law). Plaintiffs do not adequately demonstrate that
the more recent authority on which they rely clearly shows that the Yoder line of cases applies to
a vaccination requirement, especially where the ability of States to impose such a requirement is
entrenched in other Supreme Court authority. At this stage of the appeal, plaintiffs have shown
only that there is emerging law in this area. But showing the existence of emerging law that may
be distinguishable is not enough to warrant the extraordinary relief of an injunction pending
appeal.
The motion for an injunction pending appeal is denied. The motion for leave to file an
amicus brief by Brandon Michael Hayes is denied.
Dunlap, Circuit Judge, dissenting. I would grant the injunction pending appeal.
Although each of the parties makes strong arguments, in my view, Appellants We The Patriots
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USA, Inc. ("WTP") and James Childs have demonstrated entitlement to an injunction pending
appeal. See Together Emps. v. Mass General Brigham, Inc., 19 F.4th 1, 7 (1st Cir. 2021) (stating
standard for injunctions pending appeal).
I turn first to the merits. When a law substantially interferes with parents' religious
upbringing of their children and "pose[s] 'a very real threat of undermining' the religious beliefs
and practices that the parents wish to instill in their children," then the law must survive strict
scrutiny. Mahmoud v. Taylor, 606 U.S. 522, 565 (2025) (quoting Wisconsin v. Yoder, 406 U.S.
205, 218 (1972)). See Mirabelli v. Bonta, 607 U.S. 492, 493–94, 496–97 (2026) (noting that strict
scrutiny applies when a school burdens parents' religious upbringing of their children by instituting
a policy of not informing parents of students' gender transitions); Mahmoud, 606 U.S. at 562
(stating that a parent's religious upbringing of their children is substantially burdened when a state
policy effectively "tell[s] parents that they must abstain from public education in order to raise
their children in their religious faiths"); Yoder, 406 U.S. at 214–15. The Supreme Court has
rejected narrow readings of its free exercise precedents on parental rights, Mirabelli, 607 U.S. at
495, which the district court here did by limiting strict scrutiny to instances in which a school
directly inculcates values contrary to the parents' beliefs. Applying Yoder and its progeny, strict
scrutiny applies because Childs' religious beliefs regarding vaccination and the upbringing of his
children are sincere and substantially burdened by the vaccination requirement. See Perry v.
Marteney, 172 F.4th 315, 332–33, 335 (4th Cir. 2026) (Niemeyer, J., dissenting). Although the
State may be able to demonstrate that a compelling interest supports its vaccination requirement,
see Prince v. Massachusetts, 321 U.S. 158, 165–167 (1944); Does 1-6 v. Mills, 16 F.4th 20, 32
(1st Cir. 2021), Appellees have not made any argument that the requirement survives strict
scrutiny. Thus, although I do not predict the ultimate outcome of the strict scrutiny analysis,
Appellants have demonstrated a substantial likelihood of success at this stage justifying temporary
injunctive relief.
I consider next the harms to the parties, as well as the public interest. There is no dispute
that, because of the vaccination requirement, Childs' son has been deprived of the opportunity to
attend public school. Absent a showing that the vaccine requirement survives strict scrutiny, this
is a substantial and irreparable harm. Mirabelli, 607 U.S. at 497; Sindicato Puertoriqueño de
Trabajadores v. Fortuño, 699 F.3d 1, 15 (1st Cir. 2012). Further, although the State has a legitimate
interest in safeguarding the health of its residents, Does 1-6, 16 F.4th at 37, that interest would not
be substantially undermined by an injunction pending appeal. Because the State already permits
certain students a grace period to vaccinate and because the vaccination requirement does not apply
to certain students who previously invoked a religious objection, it does not appear that allowing
Childs' son and the children of other WTP members (if any) in Maine to attend school for the short
period of this appeal would cause significant harm.
I therefore respectfully dissent.
By the Court:
Anastasia Dubrovsky, Clerk
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cc: Hon. Stacey D. Neumann, Jennifer Lyons, Clerk, United States District Court for the District
of Maine, Stephen C. Whiting, Cameron Lee Atkinson, Kimberly Leehaug Patwardhan, Kendall
Schutzer, Melissa A. Hewey, Allan Bradley, Brandon Michael Hayes
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