West Virginia’s Attorney General is asking a judge to pause courtroom activity on an ongoing case about religious exemptions to school vaccination requirements and kick the overriding question to the state Supreme Court.
The question is:
“Whether the Equal Protection for Religion Act applies to West Virginia’s compulsory vaccination law and thus requires the State to offer religious and philosophical exemptions to vaccination.”
Lawyers for the Attorney General’s Office filed a motion Monday to certify that question to the state Supreme Court. The judge overseeing a lower court case would have to agree before the question would actually be floated to the high court.
By going directly to the state Supreme Court with that question at the heart of several courtroom conflicts, the lawyers say, a basic conclusion could be revealed.
Gov. Patrick Morrisey’s administration has maintained that the religious freedom act should apply to the school vaccination law, and the governor has stood by an executive order linking the two sections of code. Morrisey, a Republican, has described the need to “harmonize” the two laws.
The state Board of Education and its attorneys have maintained that the vaccination law is straightforward, specific and contains no element of religious or philosophical exemptions.
The question is playing out in local courtrooms across the state, with different results.
Mineral Circuit Judge Cody Pancake denied an injunction, concluding that West Virginia’s religious freedoms law does not directly apply to the vaccine requirements in code.
Likewise, Berkeley Circuit Judge Michael Lorensen declined a preliminary injunction for nine families, suggesting a determination from the bench that the religious freedom law affects the vaccine law would amount to judicial overreach: “I would be changing the law to recognize an exception,” Lorensen said.
However, Raleigh County Judge Michael Froble granted a preliminary injunction for parents in a high-profile case there, citing religious freedoms. That case is continuing as Froble hears additional facts to determine whether a permanent injunction is appropriate. The case there reconvenes Oct. 8 and 9.
It’s the Raleigh County case where the Attorney General is asking to pause the action and take the one big question to the Supreme Court.
“If the Supreme Court of Appeals decides how the EPRA applies to the vaccination statute, then that decision would drive the outcome of this case and all the others,” wrote lawyers for the Attorney General.
“On the other hand, waiting for each court to simultaneously take a stab at its own interpretation invites chaos.”
Morrisey’s administration has continued to stand behind an executive order issued during the governor’s first week in office. Morrisey described the basis as the “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.
Earlier this year, Morrisey’s administration issued a directive for families wanting to pursue a religious exemption to send basic information to VaccineExemption@wv.gov, which is monitored by the state Bureau for Public Health.
It’s the Equal Protection for Religion Act that families have been suing under as they attempt to get school systems to honor exemptions issued by the health department.
The state Board of Education voted to direct Superintendent Michele Blatt to issue guidance to county school systems to follow the current compulsory school vaccination law that does not permit religious exemptions for students.
That portion of state code requires West Virginia students entering school for the first time to show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted. There’s no explicit mention of religious or philosophical exemptions.
The Raleigh County case is already on notice for an appeal likely to be heard next spring. This move, if approved by the judge, would be a shortcut to the heart of the matter.
“Whether the EPRA applies to the State’s vaccination law and thus requires the State to offer religious exemptions is a legal question. The Supreme Court of Appeals would not need to resolve any factual inquiries to decide it,” wrote lawyers for the Attorney General.
“And after the Supreme Court of Appeals explains how the EPRA applies, this Court will have clarity on every claim raised by any party to any of the many pending cases touching on vaccine-related issues.”
The Attorney General also acknowledged, “Of course, if the Supreme Court of Appeals determines that state law does not permit religious exemptions, this litigation is moot.”