By Lori Kersey for West Virginia Watch, www.westvirginiawatch.Com
BECKLEY — Dealing another legal victory to Gov. Patrick Morrisey and his executive order, a Raleigh County judge on Thursday granted a preliminary injunction allowing three Raleigh County students to attend school with a religious exemption to the state’s strict compulsory school vaccination law.
Circuit Judge Michael Froble ruled that the state’s mandatory school vaccine law is invalid without a religious exemption to the law. If there were any question, he said, the state’s Equal Protection for Religion Act of 2023 makes it clear the law should make exceptions for religious beliefs.
The lawsuit was brought on behalf of Miranda Guzman, Amanda Tulley and Carley Hunter, whose children were issued a religious exemption to the school vaccine mandates by the state Department of Health.
All states require students attending school to be vaccinated against certain diseases. West Virginia had been one of only five states that allowed only medical exemptions to those requirements. Morrisey issued an executive order in January requiring the state to allow religious exemptions to its school vaccination laws. The order is based on the 2023 Equal Protection for Religion Act. State lawmakers this year did not pass Senate Bill 460, which would have established those exemptions in state code.
The West Virginia school board voted not to comply with Morrisey’s executive order and to instruct county boards of education to require all vaccines and allow only medical exemptions to those vaccination requirements.
“The court finds that only requiring school kids in the public school to have vaccinations, but not requiring adults and other people and having learning pods and having athletic activities that does occur really diminishes any kind of argument that compelling state interest in only making sure that children in the public school or attending public schools are receiving their mandatory vaccinations, and that they are disregarding their rights for exercising their religion,” Froble said.
Speaking for Guzman and the other plaintiffs, attorney Chris Weist argued that barring the students from attending school would violate the state’s Equal Protection for Religion Act and cause them irreparable harm.
“These plaintiffs are being forced to either give in to the state’s demands of vaccination, contrary to their religious beliefs, or not send their kids to school, which is a guarantee under the West Virginia Constitution for the West Virginia Supreme Court, a fundamental right.,” he said. “So I think we do have unquestionably a substantial burden on these plaintiffs’ religious exercise.”
Chris Smith, an attorney for the state Board of Education, said the governor’s reading of the Equal Protection Act is too broad. The Legislature is required to name bills according to what they do, he said. Lawmakers did not contemplate the Equal Protection for Religion Act amending the state’s school vaccination laws, he said.
The judge’s ruling applies to only the three students bringing a lawsuit against the state and Raleigh County board of educations, but is likely to have broader implications. Froble said the next step in the case should be a hearing on a permanent injunction in the case, preferably set in the next 14 days. That hearing might not happen if parties in the case decide to file a written appeal, he said.
Froble said he purposely didn’t take up the issue of whether Morrisey’s executive order is legally valid, though he said he would take it up at a future hearing on the permanent injunction.
Speaking to reporters after the judge’s ruling, state School Board President Paul Hardesty said he was disappointed and said there is a lot to digest in the ruling with the rest of the school board.
“For our counties that are now scratching their heads trying to figure out what to do, the department, as we speak, is working on putting out a statement to all 55 counties as well as the press, and we’ll have that by the close of business today,” he said.
In the school board’s statement later Thursday, it reiterated that Thursday’s ruling is limited and will not apply to other families in Raleigh County or throughout the state. It said the school board would decide the next steps in the coming days.
“As students prepare for the upcoming school year, families are encouraged to comply with West Virginia’s compulsory vaccination laws (W.Va. Code § 16-3-4) as required by legislative statute,” the board wrote.
Health care organizations, including the West Virginia Immunization Network, the state Nurses Association and the West Virginia Medical Association, issued a group statement Thursday commending the school board for “continuing to follow state code” and stressing the importance of maintaining high vaccination rates.
The organization West Virginia Families for Immunizations said it was disappointed in the ruling, and that it means West Virginia’s children will have less protection from preventable diseases when school starts.
“West Virginia has a proud track record of maintaining high vaccination rates, and the longstanding law that allows only medical exemptions for school required vaccines plays a role in that success,” they wrote. “For students and teachers who have legitimate medical reasons to forgo vaccination, their lives are now at risk as we see the resurgence of diseases once thought eliminated. We applaud the Board of Education for their strong stance on this issue, and we will continue to work to support them going forward.”
In a statement Thursday, Morrisey said the ruling is “another legal victory in the fight for religious freedom.
Kanawha County Circuit Judge Kenneth Ballard on Wednesday dismissed on procedure grounds a separate lawsuit filed by the American Civil Liberties Union of West Virginia and Mountain State Justice over Morrisey’s executive order. Ballard agreed with an attorney for the state that the ACLU failed to give the state 30-day notice of the legal action, as required by law.
“No family should be forced to choose between their faith and their children’s education, which is exactly what the unelected bureaucrats on the State Board of Education are attempting to force West Virginians to do,” Morrisey said in his statement. “My administration will continue to grant religious exemptions to compulsory vaccine requirements and uphold West Virginia’s Equal Protection for Religion Act until this case is fully settled.”
West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com.
