Judge Views Religious Vaccine Exemption as Threat to Mandates

Religious exemption to a West Virginia vaccine mandate for a single child could open the floodgates to lower immunization requirements and more infections, a federal appeals court judge warned during oral arguments Tuesday.

“You can say, well, this is just a minor exception, but it will unleash a torrent of free exercise challenges to innumerable mandatory vaccination laws,” Judge James Harvie Wilkinson III said in arguments before the US Court of Appeals for the Fourth Circuit. “This is just the first step. Is this not?”

Wilkinson’s remarks came in an exchange with Christopher Wiest, an attorney representing the family who sued Upshur County officials after their daughter was denied exemption from state requirements.

The family persuaded a lower court to block enforcement of requirements against their child, a student in a virtual school operated by the county. The Upshur officials, however, appealed to the Fourth Circuit.

Wiest argued that he’s aware exemptions “make people uncomfortable.”

Wilkinson, however, wasn’t convinced.

“You’re talking about parents that have children who may be exposed unnecessarily to some very serious illnesses in the absence of a vaccination,” Wilkinson said. “That’s more than making a parent or somebody feel uncomfortable. That makes them concerned about particularly serious diseases that might strike their children or grandchildren.”

The arguments follow actions by Health and Human Services Secretary Robert F. Kennedy Jr. seen as sewing doubt in routine US immunization practices. Most recently, Kennedy, a vaccine skeptic, changed the HHS’ recommendations for the childhood vaccine schedule by calling for fewer shots.

Under Kennedy, the HHS has also emphasized the need for state health agencies to comply with religious exemptions to vaccine mandates.

Kennedy’s former lawyer, Aaron Siri of Siri & Glimstad LLP, is also listed as an attorney for the family that sued over the West Virginia requirement, including in a brief in the appeal and in the complaint.

State vaccine policies have become increasingly important as federal standards have been lowered.

“The states that have recognized religious exemptions to their vaccine laws have far more exemptions to their vaccine laws by orders of magnitude than our states like West Virginia, that recognize medical exemptions only,” said William M. Lorensen, a Bowles Rice LLP partner representing the Upshur officials.

The court, however, was at least somewhat skeptical of ruling out religious exemptions outright.

“If you make exceptions and you exclude religion, but you include other reasons, then the question becomes whether you’ve discriminated,” Judge Paul V. Niemeyer said to Lorensen.

Still, Wilkinson said “the question is whether we want to take a step that is going to unravel mandatory vaccination laws.”

“We’re all very familiar with the toe in the water and the foot in the door and seeing it time and time again,” that “this is just this one little thing,” Wilkinson said. “And no, it becomes a foothold to a much broader assault.”

Judge G. Steven Agee was also on the panel.

The case is Krystle Perry v. Stacy Marteney, 4th Cir., No. 24-02132, oral arguments held 1/27/26.