The West Virginia Department of Health argues that when it comes to school vaccine requirements, there should be no difference between religious and philosophical objections to the shots.
Attorneys for the department explained their view of the law in a brief at the request of Raleigh County Circuit Judge Michael Froble. Froble oversees two consolidated lawsuits filed by plaintiffs on both sides of a legal fight over the state’s school vaccine law and religious liberty.
“Even before the [Equal Protection for Religion Act] came to be, West Virginia law was clear: ‘religion’ ‘in any … dispute concerning religious freedom’ encompasses ‘convictions which form the basis for the moral and ethical aspirations upon which [West Virginians] structure their lives,’” the attorneys wrote in court filings. Lacking any express indication otherwise, the EPRA must “be read in context with th[is] common law.”
“The broad common-law understanding leaves no room to draw arbitrary lines between ‘religious’ or ‘philosophical’ vaccine exemptions,” they wrote. “Whether an exemption request stems from a church doctrine, a spiritual worldview, or a secular moral conviction, the practical effect is the same: a person is considered to have practiced his or her religion so long as he or she rejects vaccination based on a deeply personal conviction about what is ‘right and wrong’ and that belief is ‘held with the strength of traditional religious convictions.’”
West Virginia has not allowed families to opt out of the school vaccine requirements for religious or philosophical reasons, but that could change. Gov. Patrick Morrisey issued an executive order earlier this year requiring the state to allow religious exemptions based on the state’s Equal Protection for Religion Act of 2023.
The state Board of Education has directed the county boards of education not to allow religious exemptions.
In one of the lawsuits, families in Raleigh County sued the school boards to accept their children’s religious exemption to the requirement. In the other lawsuit, parents of immunocompromised children are suing the state Department of Health to stop it from issuing religious exemptions. Froble has consolidated the two cases at the request of state Attorney General J.B. McCuskey.
In July, the judge granted a preliminary injunction allowing families in the Raleigh County case to send their children to school. The ruling applied only to those students. A hearing on permanent injunction in the cases started in September and will continue this week.
At the time of the September hearing, the state Department had processed 570 requests for non-medical exemptions to the state’s vaccine requirements, but health officials had not distinguished between exemptions based on religious and philosophical objections. Froble indicated the difference is important because Morrisey’s executive order is based on the 2023 Equal Protection for Religion Act. Philosophical exemptions wouldn’t apply under the EPRA, the judge said.
In the brief it filed with the court, the state Department of Education argues that the health department asks the court to expand the state’s religious freedom law beyond what the Legislature contemplated. The court should refuse, they wrote.
“Even if the Court were to consider expanding EPRA beyond its text, a broader problem remains,” the attorneys wrote. “If ‘philosophy’ is protected by EPRA, those protections cannot reach mere disagreement with a law. Otherwise, all one would need to do to exempt oneself from a law is express disagreement and opt out of it.
“Therefore, this Court should draw the bounds of the EPRA exactly where the statute’s title suggests they should be drawn: at religion alone,” the attorneys wrote.
They go on to argue that if the law is interpreted to expand to philosophical beliefs, those beliefs should be so deeply ingrained that they’re virtually the same as that person’s belief in God.
In their brief, attorneys for Marissa Jackson and Joshua Hess, the parents of immunocompromised children in school, argued that the court should rule that the religious protection law does protect philosophical and moral beliefs but the law should be applied with a “a fact-based, individualized analysis.” Jackson and Hess are represented by attorneys with the America Civil Liberties Union of West Virginia and Mountain State Justice.
They argue that the Department of Health’s interpretation of the religious protection law would have far reaching implications that would make the law vulnerable to anyone who disagrees with it.
“If adopted, this interpretation could not be confined to vaccination requirements without raising new, distinct, and significant constitutional concerns,” they wrote. “Under Defendants’ interpretation, every West Virginia law becomes vulnerable to challenge by individuals who simply disagree with its provisions, without requiring explanation of the nature of their objection or its significance in their lives. Criminal statutes, regulatory frameworks, and routine governance mechanisms would all face the most demanding constitutional scrutiny.
“The West Virginia judicial system would bear an enormous burden reviewing every law through this lens, fundamentally altering how legal challenges operate in this state,” they wrote.
Attorneys for the parents who are suing the state and Raleigh County boards of education to allow their children to attend school had not yet submitted a brief on the question of religious and philosophical exemptions on Friday afternoon.
The court hearing on a permanent injunction is expected to continue Wednesday and Thursday at the Raleigh County Judicial Center in Beckley.
Paul Hardesty, president of the state Board of Education, and Larry Ford, president of the Raleigh County Board of Education, along with acting state Health Officer Dr. Mark McDaniel, have all been subpoenaed to testify, according to court documents.
Attorneys for the parents of immunocompromised children are also expected to call witnesses from the state Department of Health, including people involved in the reviewing of exemption requests, people who helped create the policies and procedures for reviewing the exemptions and a person identified by the department who has requested a non-medical exemption.
Miranda Guzman and Carley Hunter, plaintiffs in the case against the boards of education, are also on the witness list, according to court documents. Attorneys for those parents have asked the judge to make the case a class action.
This article originally appeared on West Virginia Watch.
West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com.
