A Raleigh County circuit judge presiding over a high-profile case about whether West Virginia’s religious freedoms law affects the school vaccination requirements in state code made three key rulings Wednesday at the start of a full day of courtroom activity.
A permanent injunction hearing will continue on Thursday. The judge is unlikely to make a ruling on the overall case until later because the attorneys still need additional time to file written briefs. Everyone involved in the case believes it’s establishing a record for review by the state Supreme Court.
Nevertheless, Judge Michael Froble rattled off three rulings early in Wednesday’s hearing that will have significant resonance.
1. Froble agreed to class action status for the case.
“The class action makes sense to the court,” Froble said.
The judge said the issues in the case have statewide impact, noting that the state Board of Education has advised county boards to not recognize the religious exemptions to vaccines issued by the state Department of Health.
The judge said, “the court believes this case is about the state board of education having a policy to not recognize religious exemptions. It’s a statewide policy.”
And the judge took into account the 570 applications for religious exemptions already issued to families by the state board of health. He talked about the possibility of those families going individually into courtrooms around the state, facing different rulings and often representing themselves. “That would be a nightmare.”
Several circuit judges in other West Virginia courtrooms have already heard similar cases and made their own rulings, though.
Lawyers representing the families suing in Raleigh County under the state’s Equal Protection for Religion Act made the original motion to ask for class status.
Their filing suggested whatever happens in Judge Froble’s courtroom could serve as a framework for other cases seeking exemptions from West Virginia’s compulsory vaccine law.
“Statewide declaratory and injunctive relief on all of the issues of the EPRA is appropriate for class members who have been determined to have sincere religious objections to vaccination by the Department of Health or a court of competent jurisdiction,” the attorneys wrote in a motion.
“The practical effect of the relief here would be that this Court’s final order (if in favor of Plaintiffs) can be taken into any other Circuit Court in West Virginia, and a trial can be held on the limited issue of whether those plaintiffs possess a sincerely held religious belief contrary to vaccination as required by the CVL.”
2. The judge concluded the law does not distinguish among religious, philosophical and conscientious objections.
“I believe and want to make a ruling that there is no difference between religious, philosophical and conscientious,” he said.
Froble again said that if each court had to decide that matter it would not be efficient.
The judge had asked all of the lawyers in the case to address in writing whether the law covers a range of deeply held beliefs.
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.
“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.
Attorneys representing the state Board of Education took a far narrower position, arguing that the Equal Protection for Religion Act should be strictly limited to protecting religious exercise.
The lawyers for the 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.”
3. The judge decided not to seek guidance from the state Supreme Court about a question at the heart of the case.
The question first proposed by the Attorney General’s Office was: “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.”
Judge Froble concluded, “I don’t think the Supreme Court needs to rule on that.”
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.
Members of the state school board maintain the mandatory vaccination law should be interpreted based on its straightforward language. The House of Delegates earlier this year voted down a bill that would have added an explicit religious exemption to the vaccination law.
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.
As to whether the religious protection act applies to the vaccine law, Judge Froble said, “The question is not whether it applies because it does.”
But there is an element of the religious protections law about compelling state interest, and the judge did say, “What we’re left with is… this is a public health issue.”
Lawyers on various sides of the case objected to the judge’s rulings on those motions and will elaborate in writing.
The hearing in Froble’s courtroom continued all day Wednesday with testimony by state school board President Paul Hardesty, two parents of vulnerable children in the public school system who worry about exposure to communicable disease and the state epidemiologist.
When the hearing picks up again Thursday, West Virginia’s state health officer is expected to testify. Froble himself subpoenaed Dr. Mark McDaniel, who was very recently named acting state health officer.
McDaniel is the only witness expected to provide testimony on Thursday. After that, the lawyers in the case will provide closing arguments.