By Brenda Baletti, Ph.D.

West Virginia can enforce its school vaccination law without offering religious exemptions, a federal appeals court ruled Wednesday. The ruling overturned a lower court decision that had temporarily allowed a child who had not received all the state-mandated vaccines to remain enrolled in an online public school.

In a 2-1 decision, the U.S. Court of Appeals for the 4th Circuit found that the state’s requirement that students be vaccinated against a range of infectious diseases does not violate the First Amendment’s protection of religious freedom.

Anthony and Krystle Perry brought the case on behalf of their daughter, who was enrolled in West Virginia Virtual Academy, an online public school, but was later disenrolled after school officials determined she was not fully vaccinated.

The parents, who argued that vaccinating their child conflicted with their Christian beliefs, sought a religious exemption, which West Virginia law does not provide.

West Virginia is one of only five states that prohibit religious exemptions for school vaccine mandates.

A lower federal court that had previously sided with the family issued a preliminary injunction, which allowed the child to return to school while the case proceeded. The appeals court reversed that decision, ruling that the parents are unlikely to succeed on their constitutional claim.

Experts who spoke with The Defender said the court’s decision was out of step with the evolving legal framework on religious exemptions to vaccine mandates. They said the majority decision disregarded key recent U.S. Supreme Court (SCOTUS) decisions holding that denials of religious exemption claims must be subject to “strict scrutiny.”

Strict scrutiny is the highest standard of judicial review. Under that standard, a government action, such as the denial of a religious exemption, is presumed unconstitutional and the government must clear a high bar to justify the denial as constitutional.

“The majority opinion here fails to recognize the importance of recent Supreme Court decisions Mahmoud v. Taylor and Miller v. McDonald, in particular,” said Kim Mack Rosenberg, general counsel for Children’s Health Defense.

Mack Rosenberg said it “strains credulity” that the 4th Circuit failed to recognize the shifting legal landscape in the area, particularly by dismissing the applicability of the Mahmoud case and applying rational basis review — a lower standard — rather than strict scrutiny, which SCOTUS has recognized as the proper standard

She also said that U.S. Circuit Judge Paul Niemeyer, in his dissent, “dismantles the majority’s misapplication or failure to apply Supreme Court decisions directly on point that would result in a different outcome.”

Majority: vaccine law is neutral and constitutional

Writing for the majority, U.S. Circuit Judge Harvie Wilkinson argued that states have broad authority to protect public health, including through mandatory vaccination laws.

Wilkinson wrote that rights “do not swing free and clear of the larger social compact,” and that states can “in a measured way, require certain exactions and accommodations to the broader social interest.”

Rather than relying on the recent SCOTUS decisions, Wilkinson pointed to the 1905 Jacobson v. Massachusetts decision upholding mandatory vaccinations and later rulings affirming states’ authority to require immunizations for school attendance.

Because the law applies broadly and does not target religion, the court said it qualifies as a “neutral and generally applicable” law. Under that standard, it does not need to provide religious exemptions.

“West Virginia is an outlier … in its refusal to grant exemptions to children whose sincerely held religious beliefs prevent them from getting vaccinated,” Wilkinson conceded.

Yet, the panel also rejected the argument that allowing medical exemptions — but not religious ones — made the law unconstitutional. Medical exemptions, the court said, are based on health considerations and do not undermine the state’s goal of reducing disease transmission.

Attorneys for the parents argued that vaccination requirements should not apply to students in virtual programs, who are not physically present in classrooms.

The court disagreed, arguing that virtual students remain part of the public school system and may still interact with others through school activities. Even if their risk of spreading disease is lower, the state can still require vaccination as part of a broader public health strategy, the court said.

Sharp dissent focuses on religious rights

In a dissenting opinion, Niemeyer argued that the policy unfairly burdens religious families, especially because West Virginia allows unvaccinated children to be educated at home or in alternative settings such as learning pods and microschools.

He noted that the Perrys attempted to homeschool their child to avoid the mandatory vaccination requirement. However, they were unable to do so because one of them works full time and the other is disabled, so they were legally compelled to enroll their child in school.

Niemeyer wrote that the majority’s analysis was conducted “mostly from 10,000 feet above,” failing to grapple with the fact that 45 other states allow religious exemptions, dismissing the fact that the Perrys hold sincere religious beliefs against vaccination, and failing to address the specifics of the case.

He accused the majority of ignoring that the existing law contains exceptions for children in learning environments similar to the one the Perrys’ child attends, and is therefore not generally applicable to all students.

“The state’s policy treats public-school virtual students who assert a religious objection to vaccination differently than other similarly situated children,” he wrote.

Niemeyer said the state was forcing parents to choose between public education and their religious beliefs — a conflict he argued should trigger the highest level of constitutional scrutiny.

He also noted that since the U.S. District Court for the Northern District of West Virginia granted the preliminary injunction, SCOTUS has issued several opinions confirming that strict scrutiny must be applied in religious exemption cases.

Those include Mahmoud v. Taylor, in which the Supreme Court sided with parents who wanted to opt their kids out of LGBTQ-themed elementary school books on religious grounds.

The majority’s claim that this case is not “of the same character” as those rulings was “flatly contradicted” by SCOTUS just months ago, when the justices indicated that Miller v. McDonald — a similar compulsory vaccination case — should be reconsidered in light of the decision in Mahmoud v. Taylor.

Quoting the Supreme Court in Mahmoud, Niemeyer wrote, “The government cannot condition [public education] on parents’ willingness to accept a burden on their religious exercise.”

The case will now proceed in the lower court, but without the injunction that allowed the child to attend her virtual school.

Separate case targets West Virginia governor’s executive order on religious exemptions

In January 2025, West Virginia Gov. Patrick Morrisey issued an executive order on his first full day in office, allowing for religious exemptions from mandatory school vaccinations, ending one of the most restrictive vaccination policies in the country.

However, the West Virginia Department of Education has since directed the state’s schools to follow existing vaccine laws, which don’t recognize religious exemptions.

Meanwhile, attorneys for the education department have been challenging the executive order in court.

That case is currently on appeal to the West Virginia Supreme Court, following a November 2025 state circuit court ruling that allowed families with religious or philosophical objections to the state’s school vaccination policy to attend school.

It is unclear what bearing Wednesday’s 4th Circuit ruling may have on the West Virginia Supreme Court’s consideration of this separate case, according to West Virginia Watch.

Related articles in The Defender

• ‘Huge Win’: West Virginia Governor Issues Executive Order Allowing Religious Exemptions
• West Virginia Schools Ordered to Defy Governor on Religious Exemptions
• West Virginia Governor Clashes With Education Officials Over Religious Exemptions

The post Appeals Court Upholds West Virginia Vaccine Mandate, Rejects Religious Exemption for Online School appeared first on Children’s Health Defense.

 

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