West Virginia—long known for having one of the strictest vaccine mandates in the country—is now the latest flashpoint in a growing national conflict between medical orthodoxy and constitutional liberty.

Earlier this month, Governor Patrick Morrisey issued an executive order recognizing religious exemptions to school vaccination requirements, citing the state’s 2023 Equal Protection for Religion Act (EPRA).
https://apps.sos.wv.gov/adlaw/executivejournal/readpdf.aspx?DocID=97525

But almost immediately, the West Virginia Board of Education pushed back, directing schools to ignore the order and continue enforcing the statute as written—without any religious exemption. The ACLU of West Virginia and Mountain State Justice have already filed suit. https://www.acluwv.org/en/press-releases/aclu-wv-msj-file-suit-stop-enforcement-gov-morriseys-vaccine-exemption-order

Now the courts must decide: Can a governor act unilaterally to protect parental rights and religious freedom, or must schools 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.

West Virginia’s Equal Protection for Religion Act, passed in 2023, mandates strict scrutiny for any state action that burdens religious exercise. https://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=hb3042+intr.htm&i=3042&sesstype=RS&yr=2023 The governor is relying on that law to argue that the vaccine statute, as currently enforced, is likely unconstitutional unless it allows religious exemptions. On that theory, his executive order doesn’t change the law—it temporarily prevents the enforcement of a potentially unlawful one.

The Board of Education, by contrast, is taking the position that its duty is to enforce the statute as written, regardless of constitutional concerns, unless a court tells them otherwise. And they have support from groups like the ACLU, who have already filed a writ of mandamus to block enforcement of the executive order.

So the issue 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?

From a civil liberties standpoint, the governor’s position is commendable. He’s standing up for informed consent and parental rights against a medical bureaucracy that often treats mandates as sacred and exemptions as threats. That takes courage. If I were a betting man, I’d say the odds favor the Board of Education, on narrow statutory grounds, at least in the short term. (added): But I think there is a way to get to real issue without the executive order distraction.

The real issue, is whether compelled vaccination without a religious exemption can survive strict scrutiny under West Virginia law. And I am in favor of any case (or counterclaim) that presents that issue to the courts.

Rick Jaffe, Esq.