Gov. Patrick Morrisey’s directive to allow religious exemptions to vaccination requirements will be challenged in court.
A lawsuit has been filed on behalf of two parents asking a court to stop state education officials from enforcing Morrisey’s executive order.
One of the plaintiffs, Marisa Jackson, is described as a Kanawha mother of a school-aged child who is particularly susceptible to illness if fewer classmates are vaccinated. The other plaintiff, Joshua Hess, is described as a pediatric hematologist and a Cabell County father of an immunocompromised child.
The American Civil Liberties Union of West Virginia and Mountain State Justice filed the lawsuit in Kanawha Circuit Court, which is the standard venue for lawsuits against state government. Judge Kenneth Ballard has been assigned.
“The question before this Court is simple: Can the West Virginia Governor, through Executive Order, override a clear and mandatory directive created by state statute and, in so doing, relieve state actors of nondiscretionary duties assigned to them through state code?” wrote the lawyers filing the suit.
“To that, West Virginia Courts have a clear and decisive answer: No, he may not.”
West Virginia state law has a requirement that students entering school for the first time show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
Morrisey had called for legislation this year allowing West Virginia families to declare religious and philosophical exemptions to the state’s school vaccination requirements. However, on March 24, the House of Delegates voted 42-56 to kill a controversial vaccination exemptions bill.
The Morrisey administration says it is maintaining an executive order that the governor issued during his first week in office. Morrisey described the basis as the “Equal Protection for Religion Act,” which went into law in 2023.
That bill stipulated the government would not be able to “substantially burden” someone’s constitutional right to freedom of religion unless doing so “is essential to further a compelling governmental interest.” Much of the public debate at the time focused on how the policy might affect LGBTQ+ rights.
Morrisey issued guidance on May 9 directing public school officials to comply with the executive order and asking private schools to do so.
“For parents and guardians seeking an exemption,” he wrote, “while a statutory change to West Virginia’s compulsory vaccine statute did not pass in the 2025 Regular Legislative Session, my Executive Order 7-25 still stands and I have no intention of rescinding it.”
Speaking earlier this month on MetroNews Midday, the governor stood by his interpretation of the religious freedom act to apply to school vaccinations.
“So people sometimes confused and said, ‘Well, it’s an executive order trying to override a statute.’ That’s nonsense. It’s an executive order that’s articulating the legal reasons why you have to reach this result, and it’s the correct result,” Morrisey said.
“Now we recognize that some people like to litigate, and they like to spend a lot of money. They should talk to the Attorney General’s office. They should talk to our office. But you can’t have a religious freedom law that has no meaning, and here we have individuals that believe very deeply in specific religions.”
Morrisey wrote in the guidance that parents and guardians may obtain an exemption by sending a signed letter to VaccineExemption@wv.gov including the student’s name and birth date, the name of the parent or guardian and their mailing address and the name of the school.
The guidance does not say the request for exemption must cite a particular religious belief or tradition.
The lawsuit counters that no portion of the State’s Religious Freedom Restoration Act permits the governor to unilaterally suspend acts of the Legislature.
ACLU-WV and Mountain State Justice are asking for the judge to direct the governor to fully comply with the vaccination law on West Virginia’s books while barring the executive offices from awarding any exemption that conflicts with state code.
“Governors do not rule by decree,” ACLU-WV Legal Director Aubrey Sparks said.
“At the center of this lawsuit is who gets to make these decisions for our students,” Sparks said. “On this question, the state Constitution is clear that the authority lies with the Legislature, not the governor.”