The word “notwithstanding” is doing a lot of heavy lifting in the ongoing public debate over whether West Virginia’s religious freedom act applies to school vaccination laws.
Gov. Patrick Morrisey’s administration and lawyers for families seeking religious exemptions to school vaccination requirements have consistently cited West Virginia’s “Equal Protection for Religion Act,” which went into law in 2023.
The policy 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.
They focus on one clause of the law to say religious freedoms apply to every facet of state code unless there is a clear statement otherwise.
The key six-word phrase is “notwithstanding any other provision of law.”
In other words, the argument goes, notwithstanding specific phrasing in a law to say religious objections would not apply — well, they would.
That’s a key part of the rationale for the governor and his allies in the ongoing public policy debate over vaccines, but more broadly the concept would be dribble drabbled across all of state law — notwithstanding specific language to say otherwise.
Chris Wiest, an attorney representing three families asserting religious viewpoints to have vaccine exemptions honored in Raleigh County, described the legal position last month on MetroNews Talkline.
Wiest specified the section of state code and its provision that says, “notwithstanding any other provision of law,” no state action may substantially burden the exercise of religion except for some boundaries like whether it’s essential to compelling governmental interests and the least restrictive means of achieving that.
“The legislature went in and they passed a law that basically was analogous to the federal Religious Freedom Restoration Act, and it grafts onto every single West Virginia law,” Wiest said that day on Talkline.
Sean Whelan, an attorney for Governor Morrisey’s administration made the same legal argument earlier this month in a presentation to the West Virginia Professional Charter Schools Board, who he was asking to partner with the administration and allow religious exemptions.
Whelan said the “notwithstanding” clause “signals that the legislature intends to supersede other conflicting laws.”
“It says, ‘notwithstanding any other provision of the code to the contrary, and it also leaves no doubt about it, that there’s primacy over otherwise conflicting state laws.”
That argument has played a prominent role in circuit court in Raleigh County, where families are suing to assert religious freedoms over the vaccination law.
A friend of the court brief filed on behalf of the governor and his administration highlighted the legal argument giving “notwithstanding” the leverage to sprinkle religious freedom throughout all of state law, including vaccination requirements.
“By stating that its provisions apply ‘notwithstanding any other provision of law,’ the Legislature made the EPRA supreme over any conflicting statutes — including, where applicable, the vaccination law,” lawyers representing the governor wrote for the brief in the Raleigh County case.
That brief for the governor goes on to say the religious freedom law would override any law that doesn’t say otherwise.
“In this way, the EPRA operates as a constructive amendment: any law that burdens religious exercise must now yield where it doesn’t satisfy the EPRA’s heightened scrutiny.”
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 vaccine law makes no mention of religious exemptions, and the House of Delegates this year voted down a bill that would have specifically established religious and philosophical exemptions.
In a two-hour preliminary injunction hearing late last month, Wiest argued that the notwithstanding clause is a “superseding provision” that includes the compulsory vaccination law.
Wiest told the court that the notwithstanding clause means the religious freedom act supersedes other existing laws if there’s a conflict — and that there’s nothing in the vaccine law that explicitly disallows religious exemptions.
“It supersedes other existing law to the extent that there’s a conflict. That’s what notwithstanding means. That notwithstanding clause includes the CVL,” Wiest said in court, referring to the compulsory vaccine law.
Raleigh Circuit Judge Michael Froble reacted favorably to the argument and issued a preliminary injunction allowing the families to send the students to school on the basis of their religious exemptions.
Froble concluded the religious freedom law should apply to the vaccine requirements.
Attorney Christopher Smith, representing the state school board, offered another side of the argument. He said the specific language of the state vaccine law should be interpreted plainly, as it is.
“The plaintiffs in this case are asking for a religious exemption. The problem is that the religious exemption does not exist in the text of the vaccine law. Instead, what the plaintiffs are asking this court to do is to graft that requirement onto the vaccine law by means of the Equal Protection for Religion Act,” Smith said.
Smith went on to argue that the “notwithstanding” clause is being used, in effect, to amend state law on vaccination requirements. He said that interpretation is too broad.
Over the course of this public policy debate, Governor Morrisey has contended that the religious freedom law was passed without meaning. He has described a duty to breathe meaning into it.
Morrisey made that argument again this week on multiple social media posts.
The governor is set to appear Thursday at the annual, prominent Business Summit hosted by the West Virginia Chamber of Commerce — and could use the forum to elaborate on his view of how the religious freedom act affects other state laws.
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On social media this week, the Republican governor responded to skeptics of his position, “Why can’t you consider how we must harmonize the two laws? Doesn’t it trouble you that the religious freedom law wasn’t even given meaning in recent years? Laws can’t be ignored. Would you agree?
“We are merely harmonizing two laws and trying to give both of them meaning.”
House Speaker Roger Hanshaw, speaking on MetroNews Talkline, said lawmakers established a clear vaccine policy years ago and have not explicitly acted to include religious exemptions. That includes voting down a religious exemptions bill during the most recent special session.
Any interpretation is up to the judicial branch, Hanshaw said.
“The proper place litigate that question is not Twitter and Facebook. So let’s be clear about that,” said Hanshaw, R-Clay.
“The proper place for those debates to be had is in our court system.”