Attorney General J.B. McCuskey says it would be helpful for the state Supreme Court to be asked a question at the heart of West Virginia’s ongoing debate over religious exemptions for school vaccination requirements.
“The question that we’re asking is whether the Equal Protection for Religion Act, or the EPRA, applies to West Virginia’s compulsory vaccination law, and if it does, requires the state to offer religious and philosophical exemptions to vaccination,” McCuskey said on MetroNews Talkline.
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.
The wording of question his office has filed a motion to ask 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.”
The question of whether the religious freedoms law affects the law defining school vaccination requirements is occurring in courtrooms around the state, including Gilmer, Mineral, Berkeley and Raleigh.
McCuskey, on statewide radio, said it’s important to provide a clear legal interpretation because families around the state would benefit from the guidance.
“The reason why we have asked the circuit judge to certify this question to the Supreme Court is because school has started and parents are confused, and we need clarity now because there are really three sets of cases going on in the state,” McCuskey said.
The Attorney General’s Office filed the motion to certify the question to the state Supreme Court in an ongoing case in Raleigh County before Judge Michael Froble.
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.
The Attorney General’s Office is asking to pause the action and take the one big question to the Supreme Court.
Other parties to the case may respond to the certified question possibility. One possible point of contention is the wording, particularly the second half about whether the state would be required to offer religious and philosophical exemptions to vaccination.”
Judge Froble has asked the parties to the case to submit briefs on how to distinguish between religious and philosophical exemptions under the Equal Protection for Religion Act.
And one of the parties to the case, ACLU of West Virginia, has maintained there needs to be a process for determining whether families qualify for protection under the Equal Protection for Religion Act without an individualized, fact-based analysis — which has not been an aspect of the process laid out by the state.
In a recent filing, the lawyers for ACLU and Mountain State Justice say such an analysis would help “determine whether an objection warrants protection under EPRA. Defendants failed to engage in this analysis when granting exemptions and failed to gather information that would permit this Court to conduct such an analysis.”
That filing continues by noting that the state has not been asking families for their reasons and that “individuals may object to their child receiving vaccinations on numerous grounds: some of these refusals would meet West Virginia’s definition of religion while others would not.”