West Virginia’s attorney general is asking to consolidate two court cases about religious exceptions to school vaccine requirements.
Attorney General J.B. McCuskey filed the motion to consolidate earlier this week.
One case, in Raleigh County, was filed by parents who are asserting that the school system should honor religious exemptions to vaccination requirements. Late last month, Circuit Judge Michael Froble granted those families a preliminary injunction.
A Kanawha County case comes at the conflict from the opposite side.
It was filed on behalf of parents contending their immunocompromised children would be put at risk if the schools are opened to more students exempted from vaccines for communicable disease. That lawsuit challenges the constitutionality of an executive order by the governor.
“Two cases are now standing at the crossroads between state-mandated public health measures and individual religious liberty: this case and Hess in Kanawha County,” McCuskey wrote in a filing to the Raleigh County courtroom.
The Kanawha County case has been assigned to Judge Kenneth Ballard. McCuskey’s filing proposes transferring that to Raleigh County for consolidation under Judge Froble, who has already made a preliminary ruling in favor of religious exemptions to the vaccine law.
Lawyers for the state Board of Education, which maintains the vaccination law should be strictly interpreted, have asked for expedited review of Froble’s ruling by the state Supreme Court. Along with that, the school board lawyers have asked for a stay of the action in the Raleigh County courtroom.
The new consolidation request, which doesn’t address a Supreme Court review, maintains both court cases revolve around Gov. Patrick Morrisey’s executive order directing the Department of Health to issue and recognize religious exemptions to school vaccination requirements.
And, the attorney general wrote, both cases seek to sort out how West Virginia’s Equal Protection for Religion Act applies to the vaccine law.
West Virginia students entering school for the first time must show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
The “Equal Protection for Religion Act lays out the ability of individuals who believe their religious rights have been violated to seek a claim in court. The law says no state action may burden an individual’s exercise of religion unless it’s essential to furthering a compelling governmental interest and is the least restrictive means of achieving that.
At least one more case about how those laws could interact is already emerging in Gilmer County.
“A single, organized judicial response is mandatory. Identical issues, facts, and legal arguments will be presented throughout both cases, and consolidation is necessary to promote judicial efficiency, avoid duplicative litigation, and ensure orderly disposition of all issues,” McCuskey wrote.
“In contrast, separate yet simultaneous proceedings challenging religious exemptions to West Virginia’s vaccination law risks statewide confusion and inconsistency for school districts, families, and health officials.