Gov. Patrick Morrisey has officially entered his position in a state Supreme Court review of conflict between West Virginia’s religious freedoms law and its mandatory school vaccination law.
Attorneys representing the governor entered a friend of the court brief on his behalf on Monday.
“West Virginia law protects religious freedom, and that law must be followed,” Morrisey said in a statement released by his office.
“Parents should not be forced to choose between their sincere religious beliefs and their child’s right to an education. The Equal Protection for Religion Act is clear, and my administration will continue fighting to ensure that religious liberty is respected across state government.”
The 35-page brief entered by the state Attorney General’s Office on Morrisey’s behalf is one of the steps in an appeal of a Raleigh County circuit judge’s recent ruling in a case with statewide implications.
The circuit judge in Raleigh County, Michael Froble, late last year ruled in favor of families who want the public school system to accept religious exemptions processed by the state health department.
The West Virginia Supreme Court has placed a stay on lower court activity surrounding the vaccine exemptions case, meaning that Judge Froble’s ruling is on hold while the appeal goes forward.
The Supreme Court has not yet set a date for oral arguments.
The governor’s brief asks the West Virginia Supreme Court of Appeals to affirm the lower court’s ruling.
“This case is not about whether vaccines are effective or whether families may choose them,” Morrisey said in the statement distributed by his office.
“It is about whether the government can ignore a law designed to protect sincere religious exercise. West Virginia must be a state where families of faith are not pushed out of the classroom because they exercised rights protected by law.”
West Virginia’s compulsory vaccination law means 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.
Morrisey issued an executive order last year linking the Equal Protection for Religion Act with the vaccine law, which has no explicit religious exceptions.
The religious protections law gives citizens the right to sue if they believe their deeply held beliefs are being suppressed. But the law includes additional factors to weigh, including whether a compelling state interest exists to uphold a policy under the least restrictive means.
The Morrisey administration directed families to apply for exemptions through the state health department, but West Virginia school systems did not accept them.
The governor’s brief argues that the state board’s position violates the religious protection act by treating religious objectors more restrictively than others who are also permitted to attend or work in schools while unvaccinated, including students with medical exemptions and adults who are not subject to the same vaccination requirements.
“EPRA is not aspirational, and it is not a policy preference. It is the law of West Virginia, duly enacted and binding on every state actor,” wrote Holly Wilson, principal deputy solicitor general.
The brief also maintains the governor’s executive order was within his constitutional authority to ensure faithful execution of West Virginia law, including the Equal Protection for Religion Act, regularly shortened to EPRA.
“The Governor acted lawfully to harmonize EPRA and the vaccination law. The executive branch is constitutionally charged with enforcing the law, and that obligation extends to all the laws — including EPR,” wrote the attorneys on Morrisey’s behalf.
The brief contends the state Board of Education acted beyond its own scope by delivering a blanket rejection of religious exemptions.
“The Board can’t have it both ways. If it has the power to enforce the vaccination law, it answers to the Governor, and it must comply with EPRA and the executive order,” wrote the lawyers for the governor.
If it is a constitutionally independent fourth branch of government focused on school-related operations — as it insists —then it had no business enforcing the health-related vaccination law in the first place, and its no-religious-exemption policy was unlawful from the start. Either way, the Board loses.”