CHARLESTON — While focus remains on a lawsuit filed by Raleigh County parents seeking a permanent injunction against local and state education officials requiring them to accept religious exemptions to the compulsory vaccine law, motions were filed in the Kanawha County case opposing religious exemptions.

The ACLU-WV and Mountain State Justice, representing two parents with immunocompromised children, filed a motion last week in Raleigh County Circuit Court seeking a summary judgment in their favor against the West Virginia Department of Health.

Kanawha County parent Marisa Jackson and Dr. Joshua A. Hess, a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital, filed a lawsuit in August seeking a writ of mandamus asking the court to order the Department of Health to only administer medical exemptions to the state compulsory vaccine law, cease granting religious exemptions and rescind all granted religious exemptions. Both parents have children who are immunocompromised.

Their case was later consolidated with a case filed by Raleigh County parents in June seeking a permanent injunction against the Raleigh County Board of Education and West Virginia Board of Education to prohibit education officials from not accepting religious exemptions granted by the Department of Health, following a January executive order issued by Gov. Patrick Morrisey.

Judge Michael Froble of the 14th Judicial Circuit, already granted a preliminary injunction in the case, which has been appealed to the West Virginia Supreme Court of Appeals.

State code requires children attending public or private school to show proof of immunization for diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella and hepatitis B unless proof of a medical exemption can be shown.

Executive Order 7-25, issued by Morrisey on Jan. 14, ordered the Bureau of Public Health to establish a process for parents and guardians to seek exemptions on religious or conscientious grounds to the compulsory immunization law, allowing for parents to submit to the bureau a signed letter as sufficient proof. Morrisey cited the Equal Protection for Religion Act passed by the Legislature in 2023, to justify his executive order.

In a separate brief filed Sept. 18, ACLU-WV Legal Director Aubrey Sparks argued that EPRA should protect non-traditional religious beliefs, including those based on philosophical or moral worldviews. However, Sparks wrote that the applicability of EPRA requires a fact-based, individualized analysis to determine if a belief genuinely rises to the level of religious exercise. Because the Department of Health did not conduct such an analysis, the nearly 600 religious exemptions granted to date should be rescinded.

“Defendants failed to engage in this analysis when granting exemptions and failed to gather information that would permit this court to conduct such an analysis,” Sparks wrote. “Now, in an effort to retroactively cure their flawed exemption system, the Jackson Hess Defendants ask this court to adopt a definition of religion so expansive that any statement, made for any reason, automatically qualifies as religious exercise. No authority supports such an interpretation.”

The issue of whether religious exemptions and philosophical exemptions are one and the same or separate exemptions came up on the second day of hearings in Raleigh County earlier this month. Froble asked all parties in the combined lawsuit to submit briefs on the question to him before the next scheduled permanent injunction hearings scheduled for October.

“(The court) does want to try the best it can to limit the issues before the court to what the court believes is relevant in this case, and that is the Equal Protection of Religious Act,” Froble said. “The executive order in this case talks about not only religious exemptions, but it talks about philosophical exemptions. And if we are to really determine the application of the Equal Protection of Religious Act, I believe the court is restricted only to consider religious exemptions, not philosophical exemptions. They wouldn’t apply under the Equal Protection of Religious Act.”

Attorneys representing the Raleigh County parents are only concerned about making sure their client’s religious beliefs to not have their children vaccinated are upheld. Those attorneys have now asked for their case to be turned into a class action lawsuit on behalf of all parents who have been granted religious exemptions.

“To the extent anybody has a sincerely held religious belief, they’re entitled to an exemption, which is well within the intent of what the EPRA is,” said Christopher Wiest, one of the Raleigh County parents’ attorneys, during the Sept. 11 hearing. “But one of the challenges we’ve had in looking at class relief is the fact that, frankly, the Department of Health isn’t just issuing religious exemptions, they’re also issuing philosophical exemptions. And so that’s been a challenge for our team.”

Holly Wilson, the principal deputy solicitor general for the Attorney General’s Office representing the Department of Health, said there was no discernible difference between religious and philosophical exemptions.

“The West Virginia Supreme Court has already construed the term ‘religious’ or ‘religion,’ for purposes of the First Amendment free exercise clause, that religion encompasses philosophical objections,” Wilson said. “These are one and the same. You can’t break these two things apart because they are the same.”