Krystle Perry v. Stacy Marteney

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 8, 2026
• Docket: 24-2132
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-2132

KRYSTLE PERRY, individually and on behalf of their minor child K.P.; ANTHONY PERRY, individually and on behalf of their minor child K.P.,

Plaintiffs – Appellees,

v.

STACY MARTENEY, in her official capacity as the Virtual Learning Coordinator of the Upshur County Virtual School; CHRISTINE MILLER, in her official capacity as Superintendent of the Upshur County School District,

Defendants – Appellants,

and

THE BOARD OF EDUCATION OF THE COUNTY OF UPSHUR; DR. MATTHEW CHRISTIANSEN, in his official capacities as the State Health Officer and Commissioner of the Bureau of Public Health; DOUG CIPOLETTI, in his official capacity as Executive Director of the West Virginia Virtual School Academy; BRYAN HOYLMAN, in his official capacity as Chair of the Board of Directors of Mountain State Learning Solutions, Inc. d/b/a West Virginia Virtual Academy,

Defendants.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:24−cv−00018−TSK)

Argued: January 27, 2026 Decided: April 8, 2026 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 2 of 38

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: William M. Lorensen, BOWLES RICE, LLP, Charleston, West Virginia, for Appellants. Christopher David Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Covington, Kentucky, for Appellees. ON BRIEF: Robert J. Kent, Ryan S. Moore, Leigh Anne Wilson, BOWLES RICE, LLP, Parkersburg, West Virginia, for Appellants. Aaron Siri, Elizabeth A. Brehm, Walker Moller, SIRI & GLIMSTAD LLP, New York, New York, for Appellees.

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WILKINSON, Circuit Judge:

Anthony and Krystle Perry brought this suit on behalf of their daughter to obtain a

religious exemption from West Virginia’s compulsory vaccination law. Religious

exemptions are not available under state law, but the Perrys claim they are required by the

First Amendment. After finding that the Perrys were likely to succeed on the merits of their

free exercise claim, the district court granted them a preliminary injunction. We now

reverse the district court’s decision to grant preliminary relief.

Rights, as important as they are, do not swing free and clear of the larger social

compact. We live in a society that accords its citizens enormous benefits. In return, states

can, in a measured way, require certain exactions and accommodations to the broader social

interest. The police power of the states “embrace[s], at least, such reasonable

regulations . . . as will protect the public health and the public safety.” Jacobson v.

Massachusetts, 197 U.S. 11, 25 (1905). West Virginia’s compulsory vaccination law does

exactly that. It is a legitimate exercise of the state’s power to protect the health and well-

being of school children. Striking the law down would undermine not just our system of

dual sovereignty, but also a long line of Supreme Court precedent.

I.

A.

West Virginia requires children attending schools in the state to be vaccinated

against a host of infectious diseases, including chickenpox, hepatitis B, measles,

meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough. W. Va. Code

§ 16-3-4(c). Similar compulsory vaccination laws exist in all fifty states. West Virginia is

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an outlier, however, in its refusal to grant exemptions to children whose sincerely held

religious beliefs prevent them from getting vaccinated. J.A. 42.

The only permissible basis for receiving an exemption is if a child’s “physical

condition . . . is such that immunization is contraindicated or there exists a specific

precaution to a particular vaccine.” W. Va. Code § 16-3-4(h)(1). A contraindication is “a

medical condition which renders an immunization improper for a particular individual.”

W. Va. Code R. § 64-95-2.4. The CDC’s Advisory Committee on Immunization Practices

publishes contraindications for each vaccine. Id. A precaution is “a condition defined under

the current standards of immunization practice that might increase the chance or severity

of an adverse vaccine reaction or compromise the ability of the vaccine to produce

immunity.” Id. § 64-95-2.10.

To request a medical exemption, a child must obtain the certification of a licensed

physician. W. Va. Code § 16-3-4(h)(1). West Virginia’s Immunization Officer then

decides whether there is sufficient medical evidence to justify an exemption. Id. § 16-3-

4(h)(2). The Immunization Officer’s decision can be appealed to the State Health Officer

who makes the final determination. Id. § 16-3-4(h)(4)–(5). If a child is unsatisfied with the

outcome of the administrative process, she has a right to judicial review under West

Virginia’s Administrative Procedures Act. Id. §§ 16-3-4(h)(5), 29A-5-4(a).

B.

Anthony and Krystle Perry enrolled their daughter K.P. in the Virtual Academy, a

public school that provides online education to children in West Virginia. After K.P. had

been enrolled in the school for 16 months, the Virtual Learning Coordinator contacted

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Mrs. Perry regarding K.P.’s vaccination status. When Mrs. Perry confirmed that her

daughter was not fully vaccinated, K.P. was disenrolled from the school. Mrs. Perry later

sought a religious exemption from the vaccine requirement, but the Virtual Learning

Coordinator informed her that religious exemptions were not available.

Mr. and Mrs. Perry then brought this suit on behalf of themselves and K.P. They

claimed that West Virginia’s compulsory vaccination law violated their First Amendment

right to freely exercise their Christian faith. The Perrys also sought a preliminary injunction

that would permit K.P. to re-enroll in the Virtual Academy while the litigation progressed.

The district court found that the Perrys were likely to succeed on the merits of their

free exercise claim. Applying the framework laid out in Employment Division, Department

of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the court concluded that

West Virginia’s compulsory vaccination law was neither generally applicable nor narrowly

tailored to serve a compelling state interest. After finding the other preliminary injunction

factors satisfied, the court granted preliminary relief to the Perrys. This appeal followed.

II.

We review a district court’s decision to grant a preliminary injunction for abuse of

discretion. Air Evac EMS, Inc. v. McVey, 37 F.4th 89, 102 (4th Cir. 2022). However, any

legal conclusions involved in reaching that decision are reviewed de novo. Id. The only

issue on appeal is whether the district court erred when it concluded that the Perrys were

likely to succeed on the merits of their claim. Because West Virginia’s compulsory

vaccination law is in all likelihood constitutional, we hold that it did.

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1.

The First Amendment guarantees that “Congress shall make no law . . . prohibiting

the free exercise” of religion. U.S. Const. amend. I. Following passage of the Fourteenth

Amendment, the states became equally incapable of enacting such laws. Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940). “But neither the [fourteenth] amendment . . . nor

any other amendment, was designed to interfere with the power of the state, sometimes

termed its police power, to prescribe regulations to promote the health, peace, morals,

education, and good order of the people.” Barbier v. Connolly, 113 U.S. 27, 31 (1884). At

the very core of the states’ police power is the authority to “protect the public health and

the public safety” by “enact[ing] quarantine laws and ‘health laws of every description.’”

Jacobson, 197 U.S. at 25.

One common health measure is vaccination, and its history stretches back to our

nation’s founding. During the Revolutionary War, General George Washington ordered

the mandatory inoculation of the Continental Army against smallpox, declaring that

“[n]ecessity not only authorizes but seems to require the measure, for should the disorder

infect the Army . . . we should have more to dread from it than from the Sword of the

Enemy.” Letter from George Washington to William Shippen, Jr. (Feb. 6, 1777), in 8 THE

PAPERS OF GEORGE WASHINGTON, REVOLUTIONARY WAR SERIES, JANUARY 1777 –

MARCH 1777, at 264 (Frank E. Grizzard, Jr. ed. 1998). Decades later in 1810,

Massachusetts passed one of the first laws in the nation promoting vaccination. An Act to

Diffuse the Benefits of Inoculation for the Cow Pox, ch. CXVI, 1810 Mass. Acts 204, 204.

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And in 1855, Massachusetts became one of the first states to require children to get

vaccinated as a condition of entering public school. An Act to Secure General Vaccination,

ch. 414, 1855 Mass. Acts 812, 812.

The Supreme Court first considered the constitutionality of compulsory vaccination

laws fifty years later in Jacobson. There, it affirmed the conviction of a defendant for

refusing to get vaccinated against smallpox after finding that the law did not “invade[] any

right secured by the Federal Constitution.” Jacobson, 197 U.S. at 38. The Court explained

that “a community has the right to protect itself against an epidemic of disease which

threatens the safety of its members.” Id. at 27. “The possession and enjoyment of all rights

are subject to such reasonable conditions as may be deemed by the [state] essential to the

safety, health, peace, good order, and morals of the community.” Id. at 26 (quoting Crowley

v. Christensen, 137 U.S. 86, 89 (1890)). If “the rule [were instead] that each [man] is a law

unto himself,” then society “would soon be confronted with disorder and anarchy.” Id.

The Supreme Court reaffirmed its decision in Zucht v. King, 260 U.S. 174 (1922),

where it held that a law requiring school children to be vaccinated did not violate the due

process and equal protection clauses of the Fourteenth Amendment. Id. at 176–77.

According to the Court, Jacobson had already “settled that it is within the police power of

a state to provide for compulsory vaccination.” Id. at 176. Indeed, Jacobson favorably

discussed several state laws requiring “the vaccination of children [as] a condition of their

right to enter or remain in public schools.” 197 U.S. at 31–33.

Two decades later, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme

Court clarified that a state’s authority to protect a child’s health and well-being “is not

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nullified merely because the parent grounds his claim to control the child’s course of

conduct on religion or conscience.” Id. at 166. Citing Jacobson, the Court explained that a

parent “cannot claim freedom from compulsory vaccination for [his] child more than for

himself on religious grounds. The right to practice religion freely does not include liberty

to expose the community or [one’s] child to communicable disease or the latter to ill health

or death.” Id. at 166–67 & n.12.

That brings us to the Supreme Court’s decision in Smith. There the Court was asked

to hold that an individual’s right of free exercise is violated whenever a generally applicable

law requires him to perform an act that his religious beliefs forbid. 494 U.S. at 878. It

declined to do so. Echoing the concerns it expressed in Jacobson, the Court reasoned that

such a rule would “permit every citizen to become a law unto himself” by making

“religious belief superior to the law of the land.” Id. at 879 (quoting Reynolds v. United

States, 98 U.S. 145, 167 (1878)). It thus held that “the right of free exercise does not relieve

an individual of the obligation to comply with” neutral and generally applicable laws. Id.

The Smith Court also refused to apply any form of heightened scrutiny to such laws.

It warned that doing so “would open the prospect of constitutionally required religious

exemptions from civic obligations of almost every conceivable kind,” including

“compulsory vaccination laws.” Id. at 888–89. The Court then favorably cited the Supreme

Court of Arkansas’s decision in Cude v. State, 377 S.W.2d 816 (Ark. 1964), which held

that “it is within the police power of the State to require that school children be vaccinated

against smallpox, and that such requirement does not violate the constitutional rights of

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anyone, on religious grounds or otherwise.” Id. at 819. Indeed, the principle was “so firmly

settled that no extensive discussion [was] required.” Id.

After Smith, then, courts will only scrutinize neutral and generally applicable laws

for a rational basis. Polk v. Montgomery Cnty. Pub. Schs., 166 F.4th 400, 413 (4th Cir.

2026). A law can withstand rational basis scrutiny so long as it is “rationally related to a

legitimate governmental interest.” Bethel World Outreach Ministries v. Montgomery Cnty.

Council, 706 F.3d 548, 561 (4th Cir. 2013) (quoting Grace United Methodist Church v.

City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006)).

2.

This unbroken line of decisions resolves the case before us.

West Virginia legitimately exercised its police power to protect the health and well-

being of school children when it enacted its compulsory vaccination law. See W. Va. Code

§ 16-3-5 (“Immunization of children at an early age . . . is essential to maintain our

children’s health and well-being.”). Because the law is neutral and generally applicable,

the Perrys’ free exercise rights do not relieve them of their obligation to comply with it.

Accord Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353–54 (4th Cir. 2011)

(“[F]ollowing the reasoning of Jacobson and Prince, we conclude that the West Virginia

statute requiring vaccinations as a condition of admission to school does not

unconstitutionally infringe [plaintiff]’s right to free exercise.”).

West Virginia has a legitimate—indeed, compelling—interest in reducing the

spread and severity of infectious diseases. See id. at 353 (“[T]he state’s wish to prevent the

spread of communicable diseases clearly constitutes a compelling interest.”). The diseases

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covered by the law are serious and can lead to debilitating, life-threatening complications:

diphtheria (myocarditis, kidney failure, nerve damage, death); polio (permanent paralysis,

meningitis, death); measles (pneumonia, respiratory tract damage, brain swelling, death);

mumps (brain swelling, meningitis, death); rubella (hemorrhagic issues, brain swelling,

birth defects, death); whooping cough (pneumonia, brain swelling, seizures, death); tetanus

(spasms, nerve dysfunction, death); chickenpox (bacterial infections, brain swelling, lung

inflammation, death); and hepatitis B (cirrhosis, liver cancer, death). 2 GERALD MANDELL

ET AL., PRINCIPLES AND PRACTICE OF INFECTIOUS DISEASES 1964–66, 2069–72, 2128–29,

2202–04, 2231–33, 2346–48, 2690–91, 2958, 3092–93 (7th ed. 2010).

Vaccines are not just rationally related to reducing the spread and severity of

infectious diseases, they are specifically designed to do so. Smallpox went from killing

10% of London’s population in the 17th century and 500 million people globally between

1880 and 1980 to completely eradicated by 1980 after a global vaccination campaign. D.A.

HENDERSON, SMALLPOX: THE DEATH OF A DISEASE 11–12, 39 (2009). Deaths caused by

the diseases covered by West Virginia’s law have also been significantly reduced since

vaccines were first developed: diphtheria (100%); polio (100%); measles (100%); mumps

(100%); rubella (100%); whooping cough (99.3%); tetanus (99.2%); chickenpox (81.9%);

and hepatitis B (80.2%). Sandra W. Roush & Trudy V. Murphy, Historical Comparisons

of Morbidity and Mortality for Vaccine-Preventable Diseases in the United States, 298

JAMA 2155, 2156 tbl.1, 2158 tbl.2 (2007).

For these reasons, a state’s interest in vaccinating its citizens and protecting its

school children has long been recognized as of the utmost importance. See, e.g., Jacobson,

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197 U.S. at 25–27. This is not just some ho-hum, every day “compelling interest.” Even

under the strictest scrutiny, courts should not annul and eviscerate this fundamental state

concern merely because a challenged law in some respect falls short of some perceived

perfection. And much less is required of neutral and generally applicable laws. See City of

Boerne v. Flores, 521 U.S. 507, 514 (1997) (“Smith held that neutral, generally applicable

laws may be applied to religious practices even when not supported by a compelling

governmental interest.”).

Remember too that the plaintiffs’ rights are not the only things at issue here. Parents

and grandparents have their own interest in not seeing their children and grandchildren in

school environments with significant numbers of unvaccinated peers. The fact that the

executive branch of the federal government may be evincing skepticism to vaccinations

does not require the enlistment of the judicial branch in an assault upon state vaccination

requirements. It is possible we take the benefits of vaccination so much for granted that we

regard too casually the opening of a second front. States remain free to recognize the

weighty medical evidence supporting the value of vaccinations in safeguarding public

health. Such determinations lie at the very heart of the states’ police power. See United

States v. Skrmetti, 145 S. Ct. 1816, 1836 (2025) (“We afford States ‘wide discretion to pass

legislation in areas where there is medical and scientific uncertainty.’” (quoting Gonzales

v. Carhart, 550 U.S. 124, 163 (2007))).

Our friend in dissent chides us for approaching the issue “mostly from 10,000 feet

above” and lauds his own attention to the particulars. Diss. Op. at 30. Of course the

particulars are important but that hardly justifies lodging all responsibility for their

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examination in the courts. Quite missing from the dissent is any appreciation that

legislatures can craft particular compromises. It is what they do. Also missing is any

recognition that the accumulation of particulars will assuredly in time eviscerate general

and fundamental principles. This danger is nowhere so underestimated as at its inception.

The district court erred in reaching the opposite legal conclusion. In its view, West

Virginia’s compulsory vaccination law is not generally applicable because the process for

granting medical exemptions involves “significant individualized discretion.” J.A. 586.

We cannot agree. Determining whether a child qualifies for a medical exemption may

require some degree of professional judgment, but that is not the kind of unfettered

discretion that undermines the general applicability of a law.

In Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), the Supreme Court

explained that “[a] law is not generally applicable if it ‘invite[s]’ the government to

consider the particular reasons for a person’s conduct by providing ‘a mechanism for

individualized exemptions.’” Id. at 1877 (quoting Smith, 494 U.S. at 884). As an example

of one such mechanism, the Court pointed to its decision in Sherbert v. Verner, 374 U.S.

398 (1963). Sherbert concerned a provision in South Carolina’s Unemployment

Compensation Act that deemed claimants ineligible for unemployment benefits if they

refused to accept work “without good cause.” Id. at 400–01 (emphasis added). The Fulton

Court explained that the “good cause” standard operated as a mechanism for granting

individualized exemptions because it “permitted the government to grant exemptions based

on the circumstances underlying each application.” 141 S. Ct. at 1877.

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The facts in Fulton provide another example. That case concerned a provision in

Philadelphia’s standard foster care contract that prohibited discrimination on the basis of

sexual orientation “unless an exception is granted by the Commissioner . . . in his/her sole

discretion.” Id. at 1878 (emphasis added). The Supreme Court found that the city’s

antidiscrimination policy created “a formal system of entirely discretionary exceptions” by

inviting the Commissioner “to decide which reasons for not complying with the policy

[were] worthy of solicitude.” Id. at 1878–79.

Unlike the “good cause” standard in Sherbert and the “sole discretion” standard in

Fulton, West Virginia’s compulsory vaccination law does not provide a mechanism for

granting individualized exemptions. State officials do not have any discretion “to decide

which reasons” for refusing vaccination “are worthy of solicitude.” Id. at 1879. The law

recognizes only one kind of exemption—medical exemptions—and clearly articulates the

circumstances in which state officials can grant them: when there is “sufficient medical

evidence” that a child’s “physical condition . . . is such that immunization is

contraindicated or there exists a specific precaution to a particular vaccine.” W. Va. Code

§ 16-3-4(h). To the extent state officials must exercise discretion when deciding whether

sufficient medical evidence exists in a particular case, it is cabined by judicial review. Id.

§§ 16-3-4(h)(5), 29A-5-4(a), (g).

We do agree with the district court that West Virginia’s process for granting medical

exemptions “involves discretion and judgment.” J.A. 587. Determining whether an

individual qualifies for an exemption will often require some individualized assessment.

But as the Tenth Circuit has explained, “that kind of limited yes-or-no inquiry is

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qualitatively different from the kind of case-by-case system envisioned by the Smith Court

in its discussion of Sherbert and related cases.” Axson-Flynn v. Johnson, 356 F.3d 1277,

1298 (10th Cir. 2004). If it were otherwise, then there would be no limiting principle. Every

legal standard or criterion that required some degree of professional judgment in its

application would suddenly run afoul of the Free Exercise Clause. This cannot be.

Indeed, as far as we are aware, every circuit court that has considered the issue has

held that medical exemptions to compulsory vaccination laws are not “mechanisms for

individualized exemptions” within the meaning of Fulton. See Does 1-6 v. Mills, 16 F.4th

20, 30 (1st Cir. 2021); We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 288–89 (2d Cir.

2021); Spivack v. City of Philadelphia, 109 F.4th 158, 173 (3rd Cir. 2024); Doe v. S.D.

Unified Sch. Dist., 19 F.4th 1173, 1180 (9th Cir. 2021).

The Perrys claim that two decisions are to the contrary. Resp. Br. at 20–21 (citing

Dahl v. Bd. of Trs. of W. Mich. Univ., 15 F.4th 728, 733–34 (6th Cir. 2021); Does 1-11 v.

Bd. of Regents of the Univ. of Colo., 100 F.4th 1251, 1273 (10th Cir. 2024)). But neither

decision is on point. In both cases, the court held only that a compulsory vaccination policy

lacked general applicability because it permitted university officials to grant religious

exemptions on an individualized basis. Dahl, 15 F.4th at 733–34; Does 1-11, 100 F.4th at

1273. West Virginia’s law does not permit religious exemptions of any kind.

C.

Finally, the Perrys ask us to affirm the district court’s decision on three alternate

bases. None are persuasive.

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The Perrys first argue that West Virginia’s compulsory vaccination law is not

generally applicable for another reason: it does not apply to other groups that pose a similar

hazard to public health. While K.P. must get vaccinated to attend the Virtual Academy, the

Perrys point out that the vaccine mandate does not apply to: (1) children educated outside

of the school system (i.e., educated at home, in learning pods, or in microschools); (2)

adults working in schools; or (3) children attending school who have been granted a

medical exemption.

It is certainly true that West Virginia’s vaccine mandate could sweep more broadly

than it does. The law could apply in other contexts, to other age groups, and to other

infectious diseases. But a law does not lack general applicability merely because it makes

classifications. All laws do so to one degree or another. Classifications only pose a

constitutional concern if they treat “comparable secular activity more favorably than

religious exercise.” Tandon v. Newsom, 593 U.S. 61, 62 (2021). That is, we ask whether

the law “prohibits religious conduct while permitting secular conduct that undermines the

government’s asserted interests in a similar way.” Fulton, 141 S. Ct. at 1877.

The first two groups the Perrys identify—children educated outside the school

system and adults working in schools—are treated more favorably than children attending

the Virtual Academy. However, the Perrys do not allege that K.P.’s desire to attend the

Virtual Academy is religiously motivated, so this is merely an instance of West Virginia

treating some secular activity more favorably than other secular activity. That does not

undermine the law’s general applicability under Fulton and Tandon.

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The only religiously motivated conduct at issue here is K.P.’s refusal to get

vaccinated. The Perrys argue that medical exemptions undermine West Virginia’s asserted

health interests in the same way that granting religious exemptions would because every

unvaccinated child is at an elevated risk of developing and transmitting infectious diseases,

regardless of the reason why they remain unvaccinated.

The Second Circuit confronted a similar argument in We The Patriots USA, Inc. v.

Connecticut Office of Early Childhood Development, 76 F.4th 130 (2d Cir. 2023). There,

the plaintiffs argued that “[w]hen two unvaccinated children walk through the schoolhouse

door, disease will not walk up to them and ask them why they are . . . unvaccinated.” Id. at

153. Even so, the Second Circuit concluded that permitting medical exemptions while

refusing religious exemptions “does, in both instances, advance the State’s interest in

promoting health and safety.” Id. The court’s explanation is worth quoting at length:

The Act promotes the health and safety of vaccinated students by decreasing, to the greatest extent medically possible, the number of unvaccinated students (and, thus, the risk of acquiring vaccine-preventable diseases) in school. The Act also promotes the health and safety of unvaccinated students. Not only does the absence of a religious exemption decrease the risk that unvaccinated students will acquire a vaccine-preventable disease by lowering the number of unvaccinated peers they will encounter at school, but the medical exemption also allows the small proportion of students who cannot be vaccinated for medical reasons to avoid the harms that taking a particular vaccine would inflict on them. . . . In contrast, exempting religious objectors from vaccination would only detract from the State’s interest in promoting public health by increasing the risk of transmission of vaccine- preventable diseases among vaccinated and unvaccinated students alike.

Id. We are in accord with the reasoning of the Second Circuit, as are several of our sister

circuits. See Doe, 19 F.4th at 1177–78; Spivack, 109 F.4th at 176; Does 1-6, 16 F.4th at

31–32. We note that the Supreme Court vacated and remanded a similar Second Circuit

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decision for reconsideration in light of Mahmoud v. Taylor, 145 S. Ct. 2332 (2025). See

Miller v. McDonald, 146 S. Ct. 879 (2025) (mem.). As we set forth below, West Virginia’s

compulsory vaccination law is altogether distinguishable from the policy at issue in

Mahmoud.

West Virginia requires school children to get vaccinated because vaccination

generally promotes their health and well-being. Nothing about that health decision

disfavors religious beliefs. The two things simply run on separate tracks. Medical

exemptions are thus categorically incomparable to conscientious exemptions of all stripes

in terms of how they affect West Virginia’s health interests.

Indeed, medical exemptions will often not be comparable to religious exemptions

when the government’s asserted interest relates to health. Medical classifications and

exemptions are an inescapable part of health regulation, and they generally exist to advance

the state’s health interests, not to undermine them. A state that limits the scope of a health

law for medical reasons is not thereby compelled to grant religious or other non-health

exemptions. To hold otherwise would lead to a slow unravelling of all manner of health

and safety regulation. “The First Amendment’s protection of religious liberty does not

require” such an interference with the states’ police power. Smith, 494 U.S. at 889.

Consider a law that prohibits the use of certain drugs without a medical prescription.

Does the allowance of medically prescribed drug use mean the state must permit religiously

motivated drug use? See id. at 874, 878 (rejecting a free exercise challenge to one such

law). Or consider a law that prohibits doctors from administering hormones or puberty

blockers to minors except to treat a medically verifiable disorder of sex development.

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Could a transgender minor get around this prohibition by claiming his desire to identify as

the opposite sex is religiously inspired? Cf. Skrmetti, 145 S. Ct. at 1829 (rejecting an equal

protection challenge to one such law).

The same proposition holds true for compulsory vaccination laws. West Virginia

has significant latitude to determine when vaccines are beneficial to its residents’ health

and well-being. These determinations will not offend the Free Exercise Clause so long as

West Virginia remains focused in all cases on health and safety.

The Perrys next argue that Smith does not apply because this case is governed

instead by the Supreme Court’s decisions in Wisconsin v. Yoder, 406 U.S. 205 (1972), and

Mahmoud v. Taylor, 145 S. Ct. 2332 (2025). Under Yoder and Mahmoud, a law that

“substantially interfer[es] with the religious development” of a child is subject to strict

scrutiny “regardless of whether the law is neutral or generally applicable.” Mahmoud, 145

S. Ct. at 2361.

Yoder concerned a compulsory school attendance law that “place[d] Amish children

in an environment hostile to Amish beliefs . . . during the crucial and formative adolescent

period of life.” 406 U.S. at 211. The law “expos[ed] Amish children to worldly influences

in terms of attitudes, goals, and values contrary to beliefs, and . . . substantially interfer[ed]

with the religious development of the Amish child and his integration into the way of life

of the Amish faith community.” Id. at 218. Compulsory school attendance thus “carrie[d]

with it a very real threat of undermining the Amish community.” Id.

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Mahmoud concerned a school policy that would not allow parents to opt their

children out of instruction involving “‘LGBTQ+-inclusive’ storybooks.” 145 S. Ct. at

2343–46. These storybooks were “designed to present certain values and beliefs as things

to be celebrated and certain contrary values and beliefs as things to be rejected.” Id. at

2353. Because the values and beliefs celebrated by the storybooks were “‘hostile’ to the[]

parents’ religious beliefs,” the storybooks “carr[ied] with them ‘a very real threat of

undermining’ the religious beliefs that the parents wish[ed] to instill in their children.” Id.

at 2355 (quoting Yoder, 406 U.S. at 211, 218).

The burden imposed by West Virginia’s compulsory vaccination law is not remotely

“of the same character” as those imposed in Yoder and Mahmoud. Id. at 2361. The law is

a public health measure, not an instrument of ideological indoctrination. It does not expose

children to values or beliefs that might be hostile to their parents’ religious beliefs. It does

not require that school instruction extoll the virtues of vaccines. All the law requires is that,

in the interest of protecting others, children get themselves vaccinated before attending

school. The need for some to protect the health and well-being of all was not present in

Yoder or Mahmoud.1

The Supreme Court’s decision in Prince is instructive on this issue. As in Mahmoud,

the Prince Court recognized the right of parents to direct the religious upbringing of their

children. 321 U.S. at 165–66 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624

1 The Supreme Court’s recent action in Mirabelli v. Bonta, 146 S. Ct. 797 (2026) (per curiam), is distinguishable for similar reasons. It was a preliminary action that did not involve a public health measure. Rather, it dealt with whether schools could facilitate children’s efforts to identify as the opposite gender without notifying their parents. 19 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 20 of 38

(1943); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)). However, the Court qualified that

“neither rights of religion nor rights of parenthood are beyond limitation” and explained

that a state’s authority as parens patriae

is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. . . . The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.

Id. at 166–67. Prince, like Jacobson before it, is directly on point. Nothing in Yoder or

Mahmoud casts doubt on the validity of these precedents, and we are bound to follow them.

Regretfully, the dissenting opinion all but ignores these two decisions. We have repeatedly

been told to follow Supreme Court decisions until the Court itself overrules them. See, e.g.,

Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023); Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Apparently the temptation to jump

the gun has in some quarters inadvisably proved irresistible.

3.

Because West Virginia’s law is neutral, generally applicable, and distinguishable

from the burdens imposed in Mahmoud and Yoder, it is subject to rational basis scrutiny.

Polk, 166 F.4th at 413. The Perrys’ final argument is that the law cannot even survive this

highly deferential standard of review. In their view, there is no rational basis for requiring

children who attend school virtually to get vaccinated because online learning yields no

appreciable risk of disease transmission.

The Perrys cannot succeed under rational basis review simply by nibbling away at

West Virginia’s law one bite at a time. Children who attend school virtually may be at a

20 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 21 of 38

lower risk of contracting and spreading infectious diseases, but the risk still remains. To be

sure, states can enact religious exemptions to vaccination requirements, or they can leave

vaccination purely as a matter of personal choice. But in our federal system, states also

have a legitimate interest in minimizing public health risks to the degree they deem

advisable. A state can thus require significant swaths of its population to be vaccinated, so

long as it reasonably believes such a step would protect and promote the public health. See,

e.g., Jacobson, 197 U.S. at 12–13, 25–27 (upholding a law that required “all the inhabitants

of Cambridge” to get vaccinated). The estimation of risk is preeminently a legislative

matter, resting as it does on empirical assessment and public sentiment. Courts should not

rush to second-guess these legislative judgments; the judiciary should hesitate before

compelling religious exemptions to a host of civic obligations. See Smith, 494 U.S. at 888–

89.

The Perrys’ real issue with the law is not that it is overbroad, but that it is

underinclusive. For example, they suggest there is no rational basis for requiring children

who attend school virtually to get vaccinated when children educated at home, in learning

pods, and in microschools can remain unvaccinated. Under rational basis review, however,

West Virginia does not need to “strike at all evils at the same time or in the same way.”

Semler v. Or. State Bd. of Dental Exam’rs, 294 U.S. 608, 610 (1935). It can “take one step

at a time, addressing itself to the phase of the problem which seems most acute to the

legislative mind.” Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 489 (1955).

Unlike children educated at home, in learning pods, or in microschools, children

who attend the Virtual Academy are part of the school system. They alone can participate

21 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 22 of 38

in school-provided extra-curricular activities and must go to school in person for periodic

testing. Oral Arg. at 4:35. “The differences between the two activities may not be striking,

but differentiation need not be striking in order to survive rational-basis scrutiny.” City of

Dallas v. Stanglin, 490 U.S. 19, 28 (1989). “If the classification has some ‘reasonable

basis,’ it does not offend the Constitution simply because the classification ‘is not made

with mathematical nicety or because in practice it results in some inequality.’” Dandridge

v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220

U.S. 61, 78 (1911)).

III.

Is the West Virginia law at issue one we would have drafted? Maybe so, maybe not.

Is the West Virgina statute constitutional? Yes.

Any difference is no mystery. Vaccines, of course, are generally aimed at

prevention, antibiotics at treatment. A judicial scratch on the surface of these twin pillars

of modern medicine would in time become a gash, as courts progressively chipped away

at the means by which ends of undisputed public benefit are implemented. It is ever so.

Individual rights and liberties are a cherished part of American constitutionalism.

Equally valued however is our constitutional structure. The dissenting opinion ignores the

Constitution’s architecture. Its litigious erosion of mandatory state vaccination laws does

more than deprive states of their historic sovereignty. It does more than infringe on the

democratic prerogative of societal self-protection. It invites the return of ancient scourges

to these very modern times, and the infliction of preventable pain and personal suffering

that rivals the individual right that the good plaintiffs in this case have come to assert.

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The district court erred when it concluded that the Perrys were likely to succeed on

the merits of their free exercise claim. West Virginia has significant discretion to pass

legislation it believes best serves the collective good, and it did not abuse that discretion

here. The state’s compulsory vaccination law serves a compelling interest and evinces no

hostility to religion. Accordingly, we reverse the district court’s decision to grant a

preliminary injunction and remand the case for proceedings duly informed by the decision

herein.

REVERSED AND REMANDED

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NIEMEYER, Circuit Judge, dissenting:

When, based on sincerely held religious beliefs, Krystle and Anthony Perry refused

to fully vaccinate their young school-aged child, as required by West Virginia’s mandatory

vaccination law, Upshur County school officials expelled the child from its Upshur County

Virtual School, a tuition-free, online, at-home schooling program that was offered in lieu

of physically attending public school. Because the mandatory vaccination law did not

require that homeschooled children be vaccinated, the Perrys attempted to homeschool

their child, but they did so imperfectly. Krystle Perry could not devote the necessary time

to the child’s homeschooling because she was the bread winner in the family and her job

took her out of the home, and Anthony Perry, who was totally disabled, was unable to

perform all the duties of homeschooling. The Perrys thus faced potential criminal

prosecution under West Virginia Code § 18-8-2 for failing to educate their child.

The Perrys commenced this action against Upshur County school officials (“School

Officials”) under 42 U.S.C. § 1983 and the First Amendment’s Free Exercise Clause, as

incorporated by the Fourteenth Amendment, seeking a religious exemption from the

mandatory vaccination of their child. They pointed out that West Virginia law exempts

school-aged children from vaccination who are homeschooled or who attend a “learning

pod” (group homeschooling) or a “microschool” (an alternative school initiated by one or

more teachers or an entity). But the law does not exempt students attending public virtual

schools at home online. They also pointed out that 45 other States provide religious

exemptions from vaccination, but not West Virginia. In their complaint, the Perrys sought

declaratory and injunctive relief, requiring the School Officials to re-enroll their child in

24 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 25 of 38

the Upshur County Virtual School without requiring them to vaccinate her in violation of

their religious beliefs.

The district court granted the Perrys a preliminary injunction prohibiting the School

Officials from enforcing the mandatory vaccination law against the Perrys and their child

in recognition of their religious beliefs and prohibiting the School Officials from denying

the child’s reenrollment in the Upshur County Virtual School based on the child’s

“unvaccinated status.” The court concluded that the mandatory vaccination law, West

Virginia Code § 16-3-4, was subject to strict scrutiny and that, with respect to virtual

students in particular, the law was not sufficiently tailored to the State’s compelling interest

in preventing the spread of infectious disease in view of exceptions that the mandatory

vaccination law allowed. Accordingly, it concluded that the Perrys were likely to succeed

on their claim and that the other factors for entering a preliminary injunction were satisfied.

I agree with the district court. The injunction entered here hardly affects West

Virginia’s compelling interest in preventing the spread of infectious disease, as the

injunction treats virtual students the same as other West Virginia students not physically

attending a school while, at the same time, preserving the Perrys’ free exercise rights.

Moreover, since the district court entered the preliminary injunction in this case, the

Supreme Court has issued opinions that confirm the district court’s decision and, indeed,

command such an injunction. See Mahmoud v. Taylor, 606 U.S. 522 (2025); see also

Miller v. McDonald, 146 S. Ct. 879 (mem.) (2025); Mirabelli v. Bonta, 146 S. Ct. 797 (per

curiam) (2026). I would affirm.

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I

The Perrys, residents of Fayette County, West Virginia, had enrolled their young

daughter in the Upshur County Virtual School, which enabled the Perrys’ child, as well as

other students in the school, to participate in schooling online from home, much like

students receiving homeschooling. But while virtual schooling is conducted by state-

certified teachers, homeschooling is provided by the students’ parents. Even though the

Perrys’ child was not physically present in a public school classroom with other children,

she enjoyed interacting with them virtually, and she excelled in learning. This structure

enabled Anthony Perry, who was disabled, to “seamlessly oversee [his child’s] education”

from home.

In December 2023, the Superintendent of the West Virginia Department of

Education sent guidance to school officials across the State, advising them that, just like

students physically attending school in person, “virtual students are required to be fully

immunized according to W. Va. Code 16-3-4.” The Superintendent’s guidance instructed

School Officials to “review the enrollment records of your full-time virtual students and

work with your administrators and school nurses to correct any non-compliant enrollment

occurrences.”

In response to that notice, Upshur County School Officials advised the Perrys that

their child was missing required vaccinations and that she needed to receive all the vaccines

required by § 16-3-4 in order to continue attending the Upshur County Virtual School.

Krystle Perry indicated that the Perrys could not vaccinate their child, as it conflicted with

their sincerely held Christian beliefs. After considering her request, School Officials

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advised Krystle that her child nonetheless had to be vaccinated and that “if the Legislature

permitted a religious exemption in the future or [the Perrys] decided to vaccinate [their

child],” then the child could re-enroll in the Upshur County Virtual School.

The applicable provisions of the West Virginia Code are not in dispute. West

Virginia requires that every child in the State, within specified ages, attend school. W. Va.

Code § 18-8-1a. But children receiving approved home instruction are exempt from

attending school, id. § 18-8-1(c), as are children participating in “learning pod[s]” and

children attending “microschool[s],” id. § 18-8-1(n). “Learning pods” are voluntary

associations of parents “choosing to group their children together to participate in their . . .

studies as an alternative to enrolling in a . . . school.” Id. § 18-8-1(n)(1)(A). And

“microschools” are schools “initiated by one or more teachers or an entity to operate a

school that charges tuition” and “is an alternative to enrolling in” a more traditional school.

Id. § 18-8-1(n)(1)(B).

The mandatory vaccination law provides that every child entering a public, private,

or parochial school in the State “must be immunized against [10 specified diseases]” and

that no child “may be admitted or received in any of the schools of the state . . . until he or

she has been immunized against [those diseases].” W. Va. Code § 16-3-4(a)–(c). The

statute does not require the vaccination of children who are approved to receive instruction

at home, as they do not attend school. The law also does not apply to children participating

in learning pods or attending microschools. See id. § 18-8-1(n)(8). The mandatory

vaccination law also exempts children from vaccination if the Commissioner of the Bureau

of Public Health determines, based on medical evidence, that “immunization is

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contraindicated or there exists a specific precaution to a particular vaccine.” Id. § 16-3-

4(h).

In short, all children in West Virginia physically attending schools must be

vaccinated, but those receiving homeschooling, participating in learning pods, or attending

microschools are exempt, as are children who are exempted by the Commissioner for

medical reasons. The mandatory vaccination law contains no exemption or exception for

religious reasons, nor does it exempt children enrolled in a public virtual school.

The Perrys formally requested a religious exemption from vaccination for their

child, and when School Officials denied their request, they commenced this action against

Upshur County School Officials for declaratory and injunctive relief to enforce their rights

under the First Amendment’s Free Exercise Clause, as incorporated against the States by

the Fourteenth Amendment. The Perrys made clear in their complaint that their action was

“an ‘as applied’ challenge” limited to their particular circumstances — as parents holding

sincere religious beliefs against vaccination whose minor child was excluded from a public

virtual school because she was not fully vaccinated.

Shortly after filing their complaint, the Perrys filed a motion for a preliminary

injunction, requesting an order requiring that their child be re-enrolled in the Upshur

County Virtual School while the litigation was ongoing. Following full briefing and a

hearing, the district court granted the Perrys’ motion with a memorandum opinion and

order dated October 15, 2024.

In entering its order, the district court addressed all four factors required by Winter

v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), but it focused most

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particularly on the requirement that the Perrys demonstrate a likelihood of success on the

merits, concluding that they had satisfied that factor. After concluding that the West

Virginia mandatory vaccination law was “not a generally applicable statute” and therefore

that the law was subject to strict scrutiny, the court concluded that the statute, as applied to

the Perrys, failed to satisfy strict scrutiny. While the court agreed with the School Officials

that they had established “a compelling state interest in preventing the spread of infectious

disease,” it concluded that the School Officials had “failed to demonstrate W. Va. Code

§ 16-3-4 [was] narrowly tailored to achieve the identified compelling state interest.”

At the outset, the court noted that “the approach West Virginia [had] taken [was]

broader than” that taken by “45 other states [that] have religious or philosophical

exemption options to their vaccine mandates.” But more particular to its decision, the court

noted that “West Virginia [had] also provided carve outs” from the compulsory vaccination

law “for other students removed from physical school structures,” such as children who are

homeschooled or those who participate in “learning pods” or “microschools.” The court

observed that “[t]hese students, like virtual students, rarely, if ever, physically attend class

or school” and therefore that it “strain[ed] reason to find [that] W. Va. Code § 16-3-4 [was]

sufficiently [narrowly] tailored to advance the State’s interest” when similarly situated

students were treated differently.

In addition to finding that the Perrys were “likely to succeed in the merits” of their

free exercise claim, the court also found that the Perrys had satisfied the three other Winter

factors — that they were likely to suffer irreparable harm were they not granted immediate

relief because the Perrys’ child “ha[d] been denied her parents’ preferred method of

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constitutionally-required education,” and they would consequently be required to face the

daunting challenges of homeschooling her, “solely because [they] refused to sacrifice their

religious beliefs” and that both the balance-of-the-equities and the public-interest factors

were established because there was a likely First Amendment violation.

From the district court’s preliminary injunction order, the School Officials filed this

interlocutory appeal. See 28 U.S.C. § 1292(a).

II

The majority opinion’s analysis to reverse the district court’s order is conducted

mostly from 10,000 feet above, maintaining that neutral and generally applicable

compulsory vaccination laws are constitutional, based on Supreme Court cases that have

long so held. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260

U.S. 174 (1922); Prince v. Massachusetts, 321 U.S. 158 (1944). The majority opinion also

trumpets that such compulsory vaccination laws exist in all 50 States (although it fails to

observe that in 45 of those States, religious exceptions are afforded). And with this

unremarkable and uncontested observation from above, the opinion concludes that rational

basis review applies here and therefore that the “Perrys’ free exercise rights do not relieve

them of their obligation to comply with [West Virginia’s mandatory vaccination law].”

Ante at 9. The opinion characterizes the Perrys’ claim unfairly, stating, “The Perrys cannot

succeed under rational basis review simply by nibbling away at West Virginia’s law one

bite at a time. Children who attend school virtually may be at a lower risk of contracting

30 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 31 of 38

and spreading infectious diseases, but the risk still remains. . . . West Virginia does not

need to strike at all evils at the same time or in the same way.” Ante at 20–21 (cleaned up).

The majority opinion curtly dismisses the fact that the Perrys hold sincere religious

beliefs against vaccination; that their child is schooled at home under the virtual school

program, just as are homeschooled children who need not be vaccinated under the law; and

that the Supreme Court’s recent decisions hold that, in circumstances as presented by the

Perrys, “a court will proceed to ask whether the policy can survive strict scrutiny,” so as to

protect free exercise rights. Mahmoud, 606 U.S. at 564. Indeed, the Mahmoud Court

clarified that, as applicable here, “when a law imposes a burden of the same character as

that in” Wisconsin v. Yoder, 406 U.S. 205 (1972) — that is, when a law substantially

interferes with “the critical right of parents to guide the religious development of their

children” — “strict scrutiny is appropriate regardless of whether the law is neutral or

generally applicable,” id. at 559, 565 (emphasis added), an instruction essentially ignored

by the majority.

In apparent critique of this position, the majority retreats to the platitude that

“[c]ourts should not rush to second-guess . . . legislative judgments.” Ante at 21. And

employing its approach, the majority summarily defers to the West Virginia legislature,

ruling simply:

It is certainly true that West Virginia’s vaccine mandate could sweep more broadly than it does. The law could apply in other contexts, to other age groups, and to other infectious diseases. But a law does not lack general applicability merely because it makes classifications. All laws do so to one degree or another.

31 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 32 of 38

Ante at 15. The majority does not, however, explain how to account for the fact that the

law exempts homeschooled students, students participating in learning pods, and students

attending microschools. And more importantly, the issue here is not whether we must defer

to the West Virginia legislature, but whether the West Virginia legislature has deferred to

the Constitution and the fundamental individual rights of the Perrys as protected by the

First and Fourteenth Amendments.

Further, to avoid Mahmoud’s recent lesson on that topic, the majority says, again

simply, “The burden imposed by West Virginia’s compulsory vaccination law is not

remotely ‘of the same character’ as those imposed in Yoder and Mahmoud.” Id. at 19. Yet,

this conclusion was flatly contradicted by the Supreme Court when it indicated that a

similar compulsory vaccination law, to which a similar religious objection was made,

should be considered again in light of Mahmoud. See Miller, 146 S. Ct. 879. Moreover,

in both Yoder and Mahmoud, as well as in Mirabelli, the plaintiffs objected to public

education regulations and practices on the basis of the burden they imposed on religious

exercise, and in all, the Court applied strict scrutiny to protect the plaintiffs’ free exercise

rights.

III

This case focuses specifically on the rights of parents to raise their children

consistent with their religious beliefs and the violation of those rights when “government

policies substantially interfere with the religious development” of their children.

Mahmoud, 606 U.S. at 546 (cleaned up). The rights of religious upbringing “extends to

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the choices that parents wish to make for their children outside the home,” thus limiting

“the government’s ability to interfere with a student’s religious upbringing in a public

school setting.” Id. at 547. Thus, the Supreme Court continues repeatedly to emphasize

that “public education is a public benefit, and the government cannot condition its

availability on parents’ willingness to accept a burden on their religious exercise.” Id. at

561 (emphasis added) (cleaned up). Indeed, the Mahmoud Court observed:

It is both insulting and legally unsound to tell parents that they must abstain from public education in order to raise their children in their religious faiths, when alternatives can be prohibitively expensive and they already contribute to financing the public schools.

Id. at 562.

These circumstances are presented here. Upshur County School Officials told the

Perrys that they “must abstain” from public education if the Perrys refused to fully

vaccinate their child, even though the School Officials understood that doing so would

violate the Perrys’ sincerely held religious beliefs. The district court recognized this, and

it issued a preliminary injunction enforcing this principle pending trial. Its ruling, I submit,

was both factually and legally sound, and it has been fully vindicated by decisions issued

by the Supreme Court since the district court ruled.

To begin, it is clear that the Upshur County School Officials’ policy must satisfy

strict scrutiny. It is well understood that “the government is generally free to place

incidental burdens on religious exercise so long as it does so pursuant to a neutral policy

that is generally applicable.” Mahmoud, 606 U.S. at 564 (emphasis added) (citing

Employment Div. v. Smith, 494 U.S. 872, 878–79 (1990)). Thus, neutral and generally

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applicable laws that burden religious exercise are ordinarily subject to rational basis

review. But if the government policy is not generally applicable, the government must

demonstrate that the policy can survive strict scrutiny. See id. And a law is not generally

applicable if the government “treat[s] any comparable secular activity more favorably than

religious exercise.” Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per curiam) (emphasis

altered). The Tandon Court explained that “whether two activities are comparable for

purposes of the Free Exercise Clause must be judged against the asserted government

interest that justifies the regulation at issue” and that “[c]omparability is concerned with

the risks various activities pose.” Id.

In this case, the mandatory vaccination law is not generally applicable as it does not

apply to children who receive home instruction, to children who are educated in learning

pods, and to children who attend microschools. These exceptions are presumably made

because the children’s learning environment in those circumstances is remote and their

exposure to other children is minimal, such that the purposes of the mandatory vaccination

law would not be substantially served. The Perrys’ child is also educated at home and thus

is in a similarly remote context with a similar risk because the child’s exposure to other

children would be similarly minimal. Yet the state’s policy treats public-school virtual

students who assert a religious objection to vaccination differently than other similarly

situated children. See Tandon, 593 U.S. at 62 (requiring the government to explain why

activities posing comparable risks are treated differently). School Officials enforced their

mandatory vaccination policy against the Perrys despite their religious objection, forcing

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them to choose between a free public education and adherence to their religious beliefs,

even though their child was learning remotely. As the Perrys argue:

West Virginia allows a variety of comparable secular activities that undermine its disease mitigation efforts to much greater degree than permitting [them] the option to pursue a religious exemption to attend online school would. In [their child’s] situation, it is clear the government has made an unconstitutional value judgment that secular motivations for opting out of vaccination are perfectly acceptable, but that religious reasons will not be tolerated — even in the virtual school setting.

Yet, as Mahmoud instructs, because “public education is a public benefit,” “the government

cannot condition its availability on parents’ willingness to accept a burden on their religious

exercise.” 606 U.S. at 561 (cleaned up). Indeed, in such circumstances, “strict scrutiny is

appropriate regardless of whether the law is neutral or generally applicable.” Id. at 565.

Were this not clear enough, the Supreme Court’s yet more recent decisions continue

to emphasize the importance of Mahmoud. On a petition for writ of certiorari to the Second

Circuit, where that court had upheld the enforcement of a mandatory vaccination law, like

the majority does here, notwithstanding the religious beliefs of the plaintiffs, see Miller v.

McDonald, 130 F.4th 258 (2d Cir. 2025), the Supreme Court vacated the Second Circuit’s

judgment and remanded the case to the Second Circuit for further consideration in light of

Mahmoud. See Miller, 146 S. Ct. 879.

And again and more recently in Mirabelli, where parents challenged California

public school gender-identity policies on free exercise grounds, the Supreme Court held —

in the context of reviewing a stay of an injunction — (1) that the school policies “likely

trigger strict scrutiny under [the Free Exercise Clause] because they substantially interfere

with the right of parents to guide the religious development of their children,” and (2) the

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policies “will likely not survive the strict scrutiny that Mahmoud demands.” Mirabelli,

146 S. Ct. at 802 (cleaned up).

While the Supreme Court has thus provided binding, repetitive, and dispositive

instruction for cases of the kind before us, the majority opinion hardly addresses these

decisions, rising above and finding comfort in a highly generalized distinction that the

Court has expressly rejected for cases in the school context where the government has

imposed a burden on religious exercise that substantially interferes with the right of parents

to guide their child’s religious development. See Mahmoud, 606 U.S. at 556, 564. Indeed,

just like the circuit court in Mirabelli, the majority has “brushed aside Mahmoud as a

narrow decision focused on uniquely coercive curricular requirements,” Mirabelli, 146 S.

Ct. at 802 (cleaned up), finding Mahmoud inapplicable on the ground that the mandatory

vaccination law at issue here “is a public health measure, not an instrument of ideological

indoctrination,” ante at 19. But that cramped reading of Mahmoud fails to give full effect

to the Court’s clear instruction that when a law effectively “tell[s] parents that they must

abstain from public education in order to raise their children in their religious faiths,” 606

U.S. at 562, that law must survive strict scrutiny to be consistent with the space the Free

Exercise Clause affords to parents “to direct the religious upbringing of their children,” id.

at 546 (cleaned up).

And when applying strict scrutiny to West Virginia’s mandatory vaccination law,

as applied to virtual students like the Perrys’ child, I conclude that the law does not satisfy

that standard. “To survive strict scrutiny, a government must demonstrate that its policy

advances interests of the highest order and is narrowly tailored to achieve those interests.”

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Mahmoud, 606 U.S. at 565 (cleaned up). Such “narrow tailoring requires the government

to show that measures less restrictive of the First Amendment activity could not address its

interest.” Tandon, 593 U.S. at 63. And this standard is not to be “watered down; it really

means what it says.” Id. at 65 (cleaned up). Yet, the School Officials have not shown how

their mandatory vaccination law is narrowly tailored in the circumstances of this case,

where the Perrys seek to re-enroll their child in a virtual school.

To be sure, West Virginia absolutely has a compelling state interest to prevent the

spread of infectious disease in order to protect the health and safety of the public, as the

district court acknowledged and the majority emphasizes. But the School Officials have

failed to show that the law’s failure to make an exception for virtual students with a sincere

religious objection to complying with the mandatory vaccination law is consistent with

narrow tailoring when students similarly situated with regard to the risk addressed need not

comply at all. The circumstances of virtual students are far more akin to those of children

receiving education from home instruction, in learning pods, and in microschools than to

those physically present in a school classroom. Indeed, making an exception for the limited

number of students whose parents both have a sincere religious objection to vaccinating

their children and who wish to take advantage of the virtual school option offered by a

public school system would itself be a prime example of a less restrictive alternative that

would help the State advance its interests without needlessly burdening students’ religious

beliefs. Thus, “The State’s interest in safety could be served by a policy that allows

religious exemptions” for students learning remotely, while enforcing the mandatory

vaccination policy for students physically attending schools. Mirabelli, 146 S. Ct. at 802.

37 USCA4 Appeal: 24-2132 Doc: 65 Filed: 04/08/2026 Pg: 38 of 38

Stepping back to view our action today, just as we must protect “the sanctity of

public discourse” as speech that must remain free from government intrusion, Garten

Trucking LC v. NLRB, 139 F.4th 269, 277 (4th Cir. 2025) (Wilkinson, J.), we must similarly

protect the sanctity of religious exercise from government intrusion, see EEOC v. Roman

Catholic Diocese of Raleigh, 213 F.3d 795, 800–01 (4th Cir. 2000) (Wilkinson, J.) (noting

that the religious ministerial exception in Title VII, which is “rooted” in the First

Amendment, “promotes the most cherished principles of religious liberty” and is “robust”).

Making room for religion is rightly recognized as essential to a democratic society,

providing the moral underpinning necessary for true freedom. See, e.g., Alexis de

Tocqueville, Democracy in America (Henry Reeve trans., George Dearborn & Co. 1838).

And this principle has special relevance in the context of parents’ rights to supervise their

children’s religious development. Yet regretfully, the majority opinion gives this no play

today.

At bottom, strict scrutiny applies to the Perrys’ free exercise challenge and the

Upshur County School Officials have not shown that applying the State’s compulsory

vaccination law to students enrolled in virtual public schools whose parents hold sincere

religious beliefs against vaccinations is consistent with the kind of narrow tailoring

required by the Constitution. I would accordingly affirm the district court’s preliminary

injunction.