The judge in a vaccine exemptions case that resumes this week asked lawyers to complete some homework about a central question that is also existential: How would you differentiate between religious beliefs and a philosophical viewpoint?
Spoiler: The lawyers in the case responded with very different views about how broadly to interpret religious exemptions and what standards, if any, should apply to determining the depth of belief.
During two days of a permanent injunction hearing last month, Raleigh Circuit Judge Michael Froble took note of the 570 vaccine exemptions processed by the state Department of Health, which has not specified whether they were sought for religious or philosophical reasons.
At issue in the court case to resume this Wednesday and Thursday is whether West Virginia’s school vaccination law is affected by the 2023 Equal Protection for Religion Act.
The latter says that “no state action may burden a person’s exercise of freedom of religion,” unless it’s essential and the least restrictive means of satisfying a compelling government interest.
“If we are to really determine the application of the Equal Protection [for Religion Act], I believe the board is restricted only to consider religious exceptions, not philosophical exemptions,” Froble said last month. “They wouldn’t apply under the Equal Protection [for Religion Act.]”
So the judge assigned the lawyers on all sides of the case to submit in writing how to best differentiate.
Attorney General’s Office takes a broad view: You can’t put a label on what you deeply believe
Among all the responses, the Attorney General’s Office representing the state Department of Health, took the broadest position of all.
Legal tradition doesn’t really differentiate between religious and philosophical beliefs, wrote lawyers for the Attorney General’s Office.
Those lawyers recommended that Judge Froble should conclude that appropriate religious exemptions under the Equal Protection for Religion Act apply to philosophical objections, too.
“The broad common-law understanding leaves no room to draw arbitrary lines between ‘religious’ or ‘philosophical’ vaccine exemptions,” wrote the lawyers for the state health department.
Whether an exemption request stems from a church doctrine, a spiritual worldview or a secular moral conviction, the practical effect is the same, the lawyers wrote: a person is considered to have practiced his or her religion so long as he or she rejects vaccination based on a deeply personal conviction about what is right and wrong.
School administrators, health officials, and other government personnel tasked with evaluating exemption requests would struggle to meaningfully distinguish between religious and philosophical beliefs, wrote lawyers for the state health department.
“A parent’s deeply held conviction that vaccination violates the natural order, that bodily autonomy is sacred, or that artificial immunity interferes with divine providence may constitute religious belief even if not connected to organized religion,” wrote the lawyers representing the state health department.
Lawyers for the health department wrote that the growth of non-traditional spiritual movements, New Age beliefs, and highly individualized forms of spirituality has blurred this kind of definition.
“Contemporary religious expression often blends elements of established traditions with personal philosophy, scientific understanding, and ethical reasoning in ways that defy neat categorization,” wrote the lawyers for the state.
“A parent who objects to vaccination based on beliefs about natural healing, holistic medicine, and spiritual wellness may be expressing views that are simultaneously religious and philosophical.”
ACLU: It’s nuanced, actually, and individual cases should be explored
Lawyers for families of immunocompromised children wrote that the Equal Protection for Religion Act extends protection to non-traditional religious beliefs.
But they said that requires a fact-based, individualized analysis to distinguish genuine religious exercise from purely secular concerns.
This represents a position by lawyers for families of immunocompromised children who contend an executive order by the governor represents overreach. These families are represented by lawyers from ACLU-West Virginia and Mountain State Justice.
The attorneys on this side of the case did not disagree that the religious freedom law could be interpreted as also covering philosophical beliefs.
However, these lawyers maintained that each case needs some way to explore the depth and source of belief.
The lawyers from ACLU-West Virginia and Mountain State Justice wrote in their own brief that the framework proposed by the Attorney General’s Office is “so expansive that any statement, made for any reason, automatically qualifies as religious exercise.”
The ACLU and Mountain State Justice lawyers wrote that the core question is when such a belief is sufficient and what must be demonstrated to establish such a claim.
Those lawyers wrote that such a determination requires an individual, fact-based analysis to determine whether an objection warrants protection under the state religious protection act. So far, wrote the lawyers for ACLU and Mountain State Justice, the state health department has established no such analysis.
“We’re saying even if you say that people can get a religious exemption, you have to do that compelling interest analysis for each person with respect to their belief and the burden on their belief, ACLU-WV legal director Aubrey Sparks said, speaking on MetroNews Talkline.
“So you can’t go and say ‘Because I like this policy that people can get religious exemptions, we’ll give one to anyone all the time without any review of what that compelling interest is or what that burden is.”
Sparks such reviews could occur a couple of different ways.
One would be through the court system, where people who believe their religious beliefs have been violated could lay out their cases, including development of relevant facts. That is the process occurring already in courtrooms around the state.
Another potential process would be state agencies to establish processes to grant people exemptions, Sparks said. But that would require legislative oversight for establishing rules.
Without going through all that, Sparks said, “We just have some unnamed government bureaucrat saying ‘Yes, you get it; no you don’t. Yes, you get it; no you don’t’ and there’s no oversight as to what the standards are that apply.”
Lawyers for school boards: You could drive a truck through the state’s definition of religious belief
Attorneys representing the state Board of Education and the Raleigh County school board each submitted briefs arguing that the Equal Protection for Religion Act should be strictly limited to protecting religious exercise.
This was a significant contrast from the Attorney General’s much broader position.
The Raleigh County board’s attorneys concluded that freedom of religion does not encompass all conscientious objections and instead is subject to a case-by-case exploration.
The lawyers for each school board maintained that requires an individualized, fact-based analysis to determine if a belief is genuinely religious, rather than merely secular or philosophical.
“West Virginia Code §35-1A-1 is titled the ‘Equal Protection for Religion Act’ (EPRA) — not the ‘Equal Protection for Religion and Philosophy Act,'” wrote lawyers for the state board in their brief.
“Nevertheless, the West Virginia Department of Public Health Defendants ask this Court to expand the horizons of EPRA beyond anything contemplated by the Legislature. This Court should refuse to do so.”
Gov. Patrick Morrisey, who supports religious and philosophical exemptions, has directed families to send a signed letter to VaccineExemption@wv.gov and include name and birth date of the student, name of the parent, name of the school and mailing address of the student.
No description of the strongly held belief is requested in that guidance.
Lawyers for the state board wrote, “It is impossible to tell whether a person’s objection to a vaccine stems from a belief tantamount to God by simply asking their address.”