Making Sense of the Religious Exemption Dispute in West Virginia
At least five lawsuits are underway in West Virginia challenging the state mandate requiring vaccination of schoolchildren, which permits no religious exemptions. Protection of religion from government intrusion is a fundamentally serious matter, not a culture war issue. But so is the protection of our children against serious and sometimes fatal diseases. What is the way out of this?
The Background
School attendance is mandatory for all children aged six to seventeen, but they must first be immunized against chickenpox, measles, mumps, polio, and six other diseases. Medical exemptions are available, but West Virginia is the only state that has never allowed religious exemptions. Four other states have joined West Virginia in the last decade by eliminating religious exemptions. Public polling that shows large bipartisan majorities of West Virginians oppose religious exemptions.
The First Amendment to the U.S. Constitution and Article 3-15 of the West Virginia Constitution prohibit government action that infringes the free exercise of religion. A claim pending in West Virginia federal court alleges that the vaccine mandate violates the Free Exercise Clause. But the U.S. Supreme Court held as early as 1905 that vaccine mandates are constitutional, and the Fourth Circuit Court of Appeals in Richmond has specifically upheld the West Virginia vaccine mandate against a Free Exercise Clause challenge.
In 2023, the West Virginia legislature enacted the Equal Protection for Religion Act (EPRA). It provides that no state action may substantially burden a person’s exercise of religion unless for a compelling governmental interest and using the least restrictive means. But neither the title nor the text of the EPRA indicates that the purpose of the law is to override the vaccine mandate law.
In fact, the Legislature has refused several times to insert religious exemptions into the vaccine mandate, most recently during the 2025 session. Obviously, the Legislature did not think the 2023 EPRA had addeed religious exemptions — otherwise a new law doing that would not have been necessary.
But this result was not satisfactory for Governor Morrissey. He tried to create the law the Legislature rejected by issuing Executive Order 7-25. The Order directs state health officials to establish a procedure for accepting “religious or conscientious” objections to “one or more vaccine” required by the vaccine mandate.
The Governor can control state health officials. But he has no authority over the State Board of Education. That Board has constitutional authority to determine the rules under which state schools will operate. The Board of Education voted in June 2025 to follow existing law and accept no religious exemptions.
The Litigation
The main question in the lawsuits is whether the EPRA even applies to the vaccination mandate. Two judges, one in Berkeley County and one in Mineral County, have said that it does not. A judge in Raleigh County has said that it does.
The Raleigh County case, Guzman v. WV Board of Education, is the most important case because that judge has also certified a class of similarly situated plaintiffs around the state and his ruling on a permanent injunction, expected in late November, will bind everyone whose case has not already been decided.
The Berkeley County judge found that the EPRA’s title reveals no purpose to amend other law. He noted that the West Virginia Constitution voids any purpose for a law not stated in its title. The judge also found that the state had a compelling interest in protecting student health and safety. If the plaintiffs didn’t want their children to be vaccinated they had other options for schooling such as private school or home school.
The Raleigh County judge went in the other direction. He argued that the EPRA begins with the phrase “notwithstanding any other provision of law.” He ruled that this language “signals legislative intent to override any conflicting provisions.” But the authority cited by the judge actually found that “notwithstanding” language does not override an earlier statute unless the language of the new law is explicitly contradictory. That is not the case here. Nevertheless, he determined that the EPRA applies to the vaccine mandate and issued a preliminary injunction allowing three children to attend school without vaccinations.
Some Observations
The opinion of the Raleigh County judge is unusual, to say the least. He seems to be on a mission to create a back-door amendment to the law, although judges are supposed to interpret law not make it. The Legislature, which has the sole authority to make law, has repeatedly refused to create religious exemptions. If the EPRA can override every compulsory law on religious grounds, what’s to stop it from overriding compulsory school attendance itself, or even paying taxes?
But political winds are blowing strongly from the right. The Governor’s Executive Order was issued one day after he took office and assumes a muscular, unitary executive power much like that employed by President Trump. The Guzman pleadings in Raleigh County are rife with political innuendo. They call West Virginia a “radical outlier” among states for having no religious exemptions. They claim that West Virginia is trying to align itself with “liberal” states like Connecticut and New York, when in fact those states have moved their law toward ours. No wonder, since West Virginia’s vaccine coverage of schoolchildren is the highest in the nation.
Non-traditional or philosophical beliefs can qualify as religious beliefs if they hold an important place in the person’s life. But even so, the EPRA would not protect ornery libertarianism – a belief that government can’t mandate an individual to do anything. And it would not protect the belief that vaccinations are ineffective or even harmful, ideas promoted by the questionable MAHA views of leading federal health officials.
Yet the exemption procedure ordered by the Governor asks no questions. That could vastly expand the number of unvaccinated children who can attend school under a religious exemption, when the underlying objection may not be religious at all. As of October 2025, the Department of Health has granted all 575 religious exemptions requested for the 2025 school year — and denied none. This large number dwarfs the number of medical exemptions granted.
This religious exemption dispute is, in its purest form, the classic struggle between the interests of the whole society and the individual within. It has played out in American history many times. Both sides in the dispute have legitimate points and it will require the Supreme Court of Appeals to sort through them. But it is hard to imagine a purpose more compelling than the protection of the health and safety of schoolchildren. And the vaccine mandate — without religious exemptions –has done an admirable job of that for 120 years.
