This article was originally published by The Defender — Children’s Health Defense’s News & Views Website.
(Children’s Health Defense) — The West Virginia Department of Education has directed the state’s schools to follow existing vaccine laws, which don’t recognize religious exemptions, instead of Gov. Patrick Morrisey’s executive order, which allows for the exemptions, West Virginia Watch reported Wednesday.
In January, Morrisey signed Executive Order 7-25 allowing religious and conscientious objections to the state’s vaccine requirements for schoolchildren. To comply with the order, parents only need to provide a written statement explaining why they object to the vaccines.
However, on Wednesday, the state Department of Education voted unanimously to require State Superintendent of Schools Michelle Blatt to issue guidance to county school systems instructing them to follow the state’s current school vaccination law.
Last month, Blatt sent a memo to county school superintendents ordering them to continue following the state’s vaccination law and recommending that students not be allowed to attend school during the 2025-26 academic year if they haven’t received the required immunizations.
However, on the same day she issued the memo, Blatt rescinded it at Morrisey’s request, NPR affiliate WOUB reported last month.
West Virginia state law requires children to receive vaccines for chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough before starting school. The state does not require COVID-19 shots for children.
California, Maine, New York and Connecticut are the only remaining states that don’t allow religious or philosophical exemptions to school vaccine mandates.
According to West Virginia Watch, “The difference between the governor’s order and state law has led to a fractured response from schools,” with some private and religious schools opting not to comply with the executive order.
In a statement Wednesday, Alex Lanfranconi, a spokesperson for Morrisey, said education department officials are “trampling on the religious liberties of children, ignoring the state’s religious freedom law, and trying to make the state an extreme outlier on vaccine policy when there isn’t a valid public policy reason to do so.”
“This decision isn’t about public health — it’s about making West Virginia more like liberal states such as California and New York,” Lanfranconi said. Lanfranconi said the state Department of Health will continue granting religious exemptions.
As of last month, the health department had approved approximately 300 religious exemptions, West Virginia Watch reported.
Morrisey’s office did not respond to a request for comment by press time.
Dispute ‘is not just legal – it’s political and philosophical’
California-based attorney Greg Glaser said an executive order “has the power of law.”
“Technically, executive orders are directives issued by a governor to manage state operations under existing law, whereas statutes passed by the legislature create or change existing law,” Glaser said.
“The current law in West Virginia includes a state-based Religious Freedom and Restoration Act (RFRA) law called the Equal Protection for Religion Act of 2023,” he said.
Similar laws exist across the U.S. and “categorically uphold religious exemptions from government mandates,” Glaser said.
Writing on his blog, California-based attorney Rick Jaffe said Morrissey “is relying on that law to argue that the vaccine statute, as currently enforced, is likely unconstitutional unless it allows religious exemptions.”
By contrast, the state Department of Education is arguing that it is obliged to enforce the statute as written.
“They put mandates under ‘strict scrutiny’ by judges and governors,” Glaser said. “Hence, the RFRA statute in West Virginia provides a strong legal basis for the governor’s executive order protecting West Virginians’ rights to freely exercise their religion.”
According to the Legal Information Institute, strict scrutiny “is the highest standard of review that a court will use to evaluate the constitutionality of government action” and starts from a “presumption of unconstitutionality.”
Jaffe said the issue at hand “is not just legal — it’s political and philosophical.”
“Who decides what counts as a valid exercise of executive power? Can a governor act to protect civil liberties when the legislature fails to do so? Or are we bound forever to agency policies that may no longer reflect either current science or constitutional values?” Jaffe asked.
Sean Whelan, general counsel for Morrisey, said the governor isn’t defying the law or casting doubt on science. In remarks quoted by West Virginia Watch, Whelan cited the 2023 law:
“[Morrisey] is reading that vaccine law together with another law, the Equal Protection for Religion Act of 2023, which prohibits government action that substantially burdens a person’s exercise of religion unless it serves a compelling government interest and is the least restrictive means of achieving that interest.”
“That language mirrors the federal Religious Freedom Restoration Act, which federal courts across the country have described as a super statute, displacing the normal operation of otherwise applicable federal laws.”
Whelan said Morrisey is asking for the department’s “partnership and support” in applying the Equal Protection for Religion Act, noting that it had not been enforced until Morrisey took office in January.
“That law should be applied as written, and when it is, it requires the religious exemptions to compulsory vaccination that the health department provides,” Whelan said.
According to The Weirton Daily Times, four others who spoke at Wednesday’s meeting, including a pediatrician and a pastor, urged education department officials to continue following the existing vaccine law.
Governor’s executive order faces legal challenges
Efforts to recognize religious exemptions to vaccination in West Virginia have followed a circuitous path in the last year.
In March, the West Virginia House of Delegates rejected Senate Bill 460, which would have codified religious exemptions into law. Despite rejection of the bill, Morrisey’s executive order remains in effect.
Last year, former Gov. Jim Justice vetoed a bill that would have allowed private schools to grant religious exemptions and also exempted virtual-only public school students. The bill garnered majorities in the state’s legislative chambers.
Morrisey’s executive order is facing a legal challenge. Last month, the American Civil Liberties Union of West Virginia and Mountain State Justice, a legal advocacy organization, filed a lawsuit in Kanawha County Circuit Court asking the court to deem the order unlawful or invalid. The lawsuit remains pending.
The challenge comes amid rising public support for religious and medical exemptions. A survey conducted by the Annenberg Public Policy Center in January showed that public support for religious exemptions has nearly doubled in the last six years.
A July 2024 Gallup poll found that support for mandatory school vaccination has declined in recent years. A study funded by the National Institutes of Health and published in the journal Vaccine in February found that 74 percent of elementary school personnel surveyed in California did not believe their schools had the authority to deny medical exemptions and that a majority opposed COVID-19 mandates.
Glaser and Jaffe predicted further legal battles ahead for Morrisey’s executive order.
“Because the Board of Education is not respecting RFRA, this will likely end up in court to determine if the RFRA law supports religious exemptions to vaccine mandates (very likely) or is the governor’s interpretation an overreach (unlikely).”
According to Glaser, the “strict scrutiny” standard places the burden of proof on the education department and means “religious exemptions will almost certainly be upheld.”
Jaffe wrote that courts will likely be asked to decide if a governor can “act unilaterally to protect parental rights and religious freedom” or if schools must “follow agency policies until the Legislature — or the judiciary — weighs in.”
“The answer depends on how courts interpret the relationship between executive authority, legislative action, and newly enacted religious liberty protections,” Jaffe wrote, suggesting that the state Department of Education may prevail, at least initially, “on narrow statutory grounds.”
Glaser said such a legal showdown over the order “would highlight a broader national issue: why are some state bureaucrats still prioritizing archaic vaccine mandates that injure children for life, rather than prioritizing religious liberty that protects children from government-mandated shots?”
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