West Virginia MSJ Filing

Case 5:23-cv-00158-JPB Document 61 Filed 07/23/23 Page 1 of 41 PageID #: 697
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING DIVISION
WEST VIRGINIA PARENTS FOR : Civil Action No.: 5:23-cv-00158-JPB

RELIGIOUS FREEDOM, et al.,
:
Plaintiffs,
v. :
DR. MATTHEW CHRISTIANSEN,

et al., :
Defendants. :
PLAINTIFFS’ MEMORANDUM IN RESPONSE TO DEFENDANT’S CROSS MOTION

FOR SUMMARY JUDGMENT AND REPLY TO DEFENDANT’S OPPOSITION IN
RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [ECF 53]
INTRODUCTION
West Virginia is among a small minority of states that prohibit religious observance in the
school vaccination arena. Defendant Dr. Matthew Christiansen (“Defendant”) strains vigorously
to preserve that status, arguing against recent and directly on point Supreme Court precedent. West
Virginia prohibits religious exemptions but allows discretionary medical exemptions under West
Virginia Code § 16-3-4 (the “CVL”). Under Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021)
and Tandon v. Newsom, 141 S. Ct. 1294 (2021), this policy violates the First Amendment. West
Virginia’s Attorney General agrees. See ECF 28.
Defendant’s opposition is chalk full of straw men and red herrings: falsely arguing that
Plaintiffs are seeking to remove vaccine mandates for school (they are not) and arguing Plaintiffs
are somehow seeking to prevent others from receiving vaccinations (they are not). Plaintiffs
merely seek a process to request and receive a religious exemption. Even with a religious
exemption, the mandate will remain. Defendant can promote vaccines zealously. And he can
continue to deny school entry to students out of compliance with the CVL – just not children whose
parents will never violate their religious beliefs to inject them with the products demanded by
Defendant. Defendant also fails to appreciate these children are not hidden in a closet but remain
part of everyday life in West Virginia.
The material facts necessary to resolve the clear and present First Amendment violations
are undisputed. Plaintiffs therefore respectfully request that the Court grant their Motion for
Summary Judgment and deny Defendant’s Cross Motion for Summary Judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
I. Evidentiary objections
At the outset, Federal Rule of Civil Procedure 56(c)(1) mandates that a party asserting that
a fact is genuinely disputed must support that assertion by “citing to particular parts of materials
1
in the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c). The evidence in support of the
facts must be admissible. See Rule 56(c)(2), (4). Thus, hearsay evidence, inadmissible at trial under
Federal Rule of Evidence (“FRE”) 803, is likewise insufficient to support a motion for summary
judgment. Francisco v. Verizon South, Inc., 756 F. Supp. 2d 705, 713 (E.D. Va. 2010); Whittaker
v. Morgan State Univ., 524 F. App’x. 58, 60 (4th Cir. 2013).
Further, it is well established that unsworn, unauthenticated documents cannot be
considered on a motion for summary judgment. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993).
“In order to authenticate a document, [FRE] 901 requires ‘evidence sufficient to support a finding
that the matter in question is what its proponent claims.’” Francisco v. Verizon South, Inc., 756 F.
Supp. 2d 705, 715 (E.D. Va. 2010) (quoting FRE 901).
Plaintiffs object to Defendant’s Exhibits B 1 (self-serving op-ed) 2, C and D (regarding
measles, addressed infra), I (regarding herd immunity in general) 3, and G, H, J, L, M, N, O, P, Q,
and U (specious articles regarding non-medical exemptions) 4 on the bases that they do not
1
All references to Defendant’s Exhibits refer to ECF 53-1 through 53-21.
2
Defendant’s Ex. B is an op-ed whose senior author received, in just the last seven years, over $700,000
from the pharmaceutical industry, including from Merck, Sanofi, and Pfizer, in funding, compensation, and
consulting fees. See https://openpaymentsdata.cms.gov/physician/273107. It is also filled with self-serving
claims untethered to any actual evidence regarding these liability free products. (See Declaration of Aaron
Siri (hereinafter “Siri”) ¶¶ 3-15, 17-25, 30, attached as Exhibit A). Courts may take judicial notice of
information contained in official government websites under Rule 201 of the Federal Rules of Evidence.
See, e.g., Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004).
3
Defendant’s Ex. I regarding herd immunity supports that it is nonsensical to deny a religious exemption
for a numerically insignificant number of students and entirely undermines even mandating, let alone only
providing a narrow religious exemption for, the four vaccines addressed in Section II infra.
4
Defendant’s Exs. G, H, J, L, M, N, O, P, Q, and U are articles written by individuals who are, as disclosed
in the articles, consultants, speakers and advisory board members, compensated by, and/or funded by
Merck, Sanofi, and/or GSK (the makers of every vaccine required for school in West Virginia) that cherry-
pick data, use specious methodologies, and argue that non-medical exemptions can cause a few extra cases
2
constitute admissible evidence under FRCP 56(c), are not based on any witness’s personal
knowledge under FRE 602, are not sworn as required by FRE 603, constitute improper opinion
evidence without appropriate evidentiary support under FRE 702 and 703, are inadmissible
hearsay under FRE 802, contain hearsay within hearsay under FRE 805, and are unauthenticated
under FRE 901.
While it is not a material fact for purposes of summary judgment, Plaintiffs additionally
object to Dr. Christiansen’s declaration [ECF 53-19] and the inadmissible opinions rendered
therein under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) because those
conclusory opinions are rendered without reliable support, or evidence. ECF 53-19 ¶¶ 14, 21, 22-
25. 5 If the Court intends to rely on Dr. Christiansen’s irrelevant and unsupported claims and
opinions to deny Plaintiffs relief, then Plaintiffs respectfully request an opportunity to depose Dr.
Christiansen and to then have a Daubert hearing on his unsupported opinions prior to any
adjudication on Plaintiff’s pending motion. 6
of measles (addressed infra) or pertussis (ignoring this means more symptomatic cases but no less
circulating pertussis bacteria since the vaccine does not prevent transmission). But since these articles are
not admissible, they will not be substantively addressed here. If the Court admits them and intends to deny
Plaintiffs’ requested relief, Plaintiffs request an opportunity to address them and depose their authors.
5
For example, he claims without any support that, “Due to our mandatory vaccination laws, West Virginia
has not reported a single case of measles in recent years, even when 31 States experienced an outbreak in
2019” without explaining why, for example, states with a religious and a personal belief exemption –
including Arkansas, Louisiana, Wisconsin, Minnesota, and North Dakota – did not have a single case of
measles in 2019. He ignores the evidence of these products’ actual safety and efficacy, including their
ability to prevent transmission (Siri ¶¶ 3-15, 17-25, 30); he pretends Plaintiffs are seeking to eliminate
mandates; and he assumes their children are forever locked in a closet hidden from the world.
6
There was also an Amicus brief riddled with false representation, mischaracterizations, and outright
deceptive claims about the products at issue. For example, claiming that the diseases for which we vaccinate
“killed millions of people each year … in the United States” is an outright fabrication. (Infra fn. 10).
Measles had a few hundred deaths annually and the number is far lower for most of the other diseases. (Id.;
Siri ¶ 24). Plaintiffs do agree with amici that “pseudoscience and misinformation” is a serious issue, which
is why amici’s brief, which relies on such information, should be given no weight whatsoever. If the Court
intends to rely on anything therein to deny relief, Plaintiffs request an opportunity to depose each amici
organization and any other entity or individual that directly or indirectly assisted in amici’s filing.
3
II. The Material Facts Necessary to Resolve the Free Exercise Claims Are Not Disputed
Defendant does not dispute that medical exemptions are permitted while religious
exemptions are not. See ECF 1 ¶¶ 6-10; ECF 48-1 ¶ 18. It is also uncontested by Defendant that
Plaintiffs’ beliefs are sincerely held, are religious, and are substantially burdened by the CVL. See
ECF 1 ¶¶ 28, 33, 34, 45, 49; 48-1 ¶¶ 3, 5, 12; 49-1 ¶¶ 9, 10, 14, 15, 17; and 49-2 ¶¶ 10-19. Also
undisputed is that Plaintiff Pastor Figaretti and Plaintiff Uhl made requests to government officials
to submit a religious exemption request but were rejected. See ECF 1 ¶¶ 35-37, 50-53, and 100.
It is uncontested that three of the six vaccines required by the CVL do not prevent infection
or transmission against the diseases they are intended to protect against, and, as such, only provide
an undefined level of personal protection. See ECF 44 at 5, fn. 2; see also ECF 49 at 9, fn. 8; Siri
¶¶ 3-13. Defendant also does not contest that for a fourth required vaccine, the Hepatitis B vaccine,
the CDC has never recorded a case of Hepatitis B being transmitted in a school setting. See ECF
44 at 5, fn. 2; Siri ¶¶ 14-15. Thus, four of the six mandated vaccines do not and cannot further the
State’s purported goal of preventing outbreaks in school. ECF 53 at 30. Defendant has also not
contested that the COVID-19 vaccine is not required for school attendance nor are vaccines for
any of the over one thousand other known pathogens. Siri ¶ 29. Defendant does cite to a CDC
article titled History of Smallpox (Defendant’s Ex. A), but it is irrelevant because smallpox vaccine
is not a vaccine required to attend school in West Virginia. See Siri ¶ 28. 7
Defendant also does not contest that requests for medical exemptions are granted after
government officials review each request on a case-by-case basis. See W.V. Code § 16-3-4(h).
7
In any event, this article omits highly material information, including the rate of vaccine uptake leading
up to the eradication of smallpox from North America in 1952, that humans are the only reservoir for this
virus, that unlike many pathogens it is only contagious after appearance of symptoms, anything about the
development of practices related to the isolation of sick patients, etc.
4
Under the statute, Defendant is “authorized” to grant medical exemptions, but is not required to
do so. Id.; see also ECF 48-1, ¶¶ 19-21 (outlining the discretionary medical exemption process).
Defendant outlines the case-by-case discretionary determinations in the appeal process for medical
exemption requests. See ECF 53 at 23-25 (Defendant describing a contraindication in broad
discretionary terms, namely a “medical condition which renders an immunization improper for a
particular individual”). Government officials exercise individualized discretion as to whether to
grant or deny each medical exemption request. Id. For example, Dr. Alvin Moss, a West Virginia
physician, has evaluated schoolchildren and determined their health conditions qualify them for a
medical exemption under West Virginia Code § 16-3-4(h), while he has evaluated other children
and determined they were ineligible for a medical exemption. See Exhibit B, Declaration of Dr.
Moss, ¶¶ 5-11. And he demonstrates the inherent case-by-case discretion associated with
evaluating these requests. Id. ¶¶ 7-16. The criteria by which medical exemptions are evaluated are
not objective and are subject to the opinion of each government official who evaluates the
exemption request. Id. Different outcomes can be reached, and are reached, depending on who
reviews the request.
Indeed, even the implementing regulations for the medical exemption in West Virginia
provide that Defendant shall consider “evidence from medical sources, such as medical history,
opinions, and statements about treatment the child has received.” W. Va. Code R. § 64-95-17.2.a.2
(emphasis added). Furthermore, the CDC contraindications and precautions list which Defendant
says it relies upon in considering medical exemptions (see Defendant’s Ex. S) provides subjective
criteria, including subjective contraindications such as “Encephalopathy (e.g., coma, decreased
level of consciousness, prolonged seizures) not attributable to another identifiable cause, within 7
days of administration of previous dose of DTP or DTaP” or “Family history of altered
5
immunocompetence,” and notes that “Events or conditions listed as precautions should be
reviewed carefully. Benefits of and risks for administering a specific vaccine to a person under
these circumstances should be considered. If the risk from the vaccine is believed to outweigh the
benefit, the vaccine should not be administered. If the benefit of vaccination is believed to
outweigh the risk, the vaccine should be administered. Whether and when to administer DTaP to
children with proven or suspected underlying neurologic disorders should be decided on a case-
by-case basis.” (Emphasis added.).
Defendant also does not challenge that a child who is unvaccinated for medical reasons
poses the same transmission risk as a child who is unvaccinated for religious reasons.
Additionally, Defendant does not challenge that for the 2021-22 school year, the percent
of West Virginia kindergarteners that are non-compliant ranged from between 2 percent and 3.5
percent, depending on vaccine. 8 These non-compliant unvaccinated children were and are
permitted to access the benefits of a formal education, while Plaintiffs’ children are categorically
excluded from West Virginia’s educational system. The percent of children in West Virginia that
are non-compliant exceeds the total percent of children that have religious and medical exemption
in many states. See fn. 8; ECF 48-1 ¶¶ 23-26 (describing religious and medical exemption rates in
neighboring states).
West Virginia allows children to be educated in unlimited numbers without vaccination
under W.V. Code § 18-8-1(n) in “learning pods,” as they are not subject to the CVL. See W.V.
Code § 18-8-1(n). West Virginia permits adults to teach in school without proof of vaccination
and allows school campus visitors without proof of vaccination.
8
See CDC Vaccination Coverage, https://www.cdc.gov/mmwr/volumes/72/wr/mm7202a2.htm.
6
The State also permits children to congregate in unlimited numbers outside of school
without vaccination requirements. See ECF 48-1 ¶ 17. Plaintiff Uhl’s children engage in team
sports including wrestling, football, tumbling, and cheerleading, participate in group learning, and
congregate daily with other children. ECF 49-2 ¶¶ 30-41. There are also no vaccine restrictions for
adults—who comprise approximately 79 percent of the state’s population 9—and are permitted to
congregate in every activity imaginable without proof of vaccination.
III. Measles and Measles Vaccine
Apart from the smallpox vaccine, which is not required to attend school in West Virginia,
Defendant focuses on measles and the measles vaccine. (Defendant’s Exs. E, K, and T). Defendant
claims school age children “have less developed immune systems to fight off infections.”
(Defendant’s Ex. E). But as Defendant’s own purported evidence explains, school-age children are
not the most susceptible to measles: “children younger than 5 years and adults older than 20 years
are more likely to suffer from measles complications,” and the same is true for chicken pox.
(Defendant’s Ex. D at 2). The other mandated vaccines either do not prevent infection or are not
relevant for doing so in a school setting. See Siri ¶¶ 3-15.
Defendant’s Exhibit K is a CDC article regarding measles cases occurring outside the
United States, but Defendant fails to provide any evidence that Plaintiffs plan to travel abroad and,
if they did, would not remain out of school for an observational period upon returning to the United
States. Defendant’s Exhibit T is a CDC article regarding an individual who, while infected with
measles, attended a 20,000-person gathering in Kentucky – a state with a check-the-box religious
exemption to attend school (ECF 5 at 21); but he ignores that this did not result in a single
additional case of measles or the need to exclude a single child from school. Defendant’s Ex. T.
9
See U.S. Census Bureau, QuickFacts West Virginia, https://www.census.gov/quickfacts/WV.
7
Defendant makes conclusory, vague, and unsupported assertions regarding measles and the
measles vaccine that should not be given any weight, including unsubstantiated assertions of
safety; in doing so he ignores, for example, that the CDC has disclosed that the MMR vaccine can
cause “seizure,” “deafness,” “long-term seizures, coma, or lowered consciousness,” “brain
damage,” and that the FDA and Merck disclose thirty-six other serious harms – most immune,
neurological, or immune-mediated harms – they have a basis to assert are causally related to
injection of the MMR vaccine. (Siri ¶¶ 17-20).
Defendant’s opposition brief would also lead the Court to believe – without a shred of
evidence – that the vaccines required for school in West Virginia are for diseases that annually
caused the deaths of “millions” of Americans in the years prior to introducing the vaccine. (ECF
53 at 3). The CDC’s mortality data makes clear that claiming even one percent of this figure is
categorically false. 10 For example, measles mortality declined by over 98% between 1900 to 1962
before the first measles vaccines was introduced in 1963; and in the years directly before 1963
there were around 400 annual measles deaths (when extreme underdevelopment still existed in
pockets of the country) and there were far fewer annual deaths from most of the other diseases.
(Siri ¶¶ 22-24; fn. 10). Defendant also ignores that having measles appears to have conferred a
survival advantage. (Siri ¶ 26). Defendant equally ignores yet other government data, making
outlandish and unsupportable claims. (Siri ¶¶ 3-15, 17-21, 30).
10
Far from millions, the United States government mortality data reflects dozens or hundreds of deaths
annually, depending on disease, in the years prior to the first licensed vaccine for tetanus (1949), diphtheria,
(1949), mumps (1967), rubella (1969), chicken pox (1995), hepatitis b (1981), and meningococcal (2006),
and around one thousand deaths from pertussis (1949 – noting pertussis mortality declined by over 94%
from 1900 to 1949) and polio (1955 – noting polio mortality, unlike the other childhood diseases,
paradoxically rose after 1900). See https://www.cdc.gov/nchs/products/vsus.htm (CDC’s Vital Statistics of
the United States) (for tetanus, diphtheria, and pertussis, the year of DTP first availability is used).
8
Defendant’s claims often require a leap of faith. What does not require suspending reason
and ignoring data is the uncontested evidence that, for example, the MMR and chicken pox
vaccines involve morally illicit ties to abortion, including fetal cellular material in each dose,
which is antithetical to Plaintiffs’ beliefs. (Siri ¶ 27). And Plaintiffs respectfully decline to replace
their beliefs with Defendant’s beliefs in “miracles.”
ARGUMENT
IV. The Court Should Maintain Jurisdiction Over the First Amendment Claim and
Should Reject Defendant’s Pullman Abstention Argument
Plaintiffs incorporate by reference their Pullman argument from their Reply in Support of
Preliminary Injunction as if set out in full herein. See ECF 44 at 9-14. Defendant requested that
the Court abstain under Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941) from adjudicating
the clear ongoing violation of Plaintiffs’ First Amendment rights – the sole claim in their complaint
– and send them to state court under a statute and claim they never pled, the West Virginia Equal
Protection for Religion Act, W. Va. Code §35-1A-1 (the “EPRA”). The Court should decline this
invitation because the challenged law, W.V. Code §16-3-4, is unambiguous, it is clearly
unconstitutional as applied to Plaintiffs, and the Supreme Court has been clear that it is improper
to require exhaustion of state claims for the pursuit of federal constitutional claims.
A. Pullman is Inapplicable Because the CVL is Unambiguous
While “federal courts should abstain from decision when difficult and unsettled questions
of state law must be resolved before a substantial federal constitutional question can be decided,”
Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984), it is well settled that “Pullman
does not command district courts to abstain simply to permit state review of an unambiguous
statute.” City of Houston v. Hill, 482 U.S. 451, 469 (1987). Here, the only statute at issue, W.V.
Code §16-3-4, is unambiguous. It expressly and unambiguously requires excluding from school a
9
child without mandated vaccines absent a medical exemption. This law has been interpreted for
decades by West Virginia to prohibit religious exemptions, Defendant’s website makes clear it
will not accept religious exemptions, and no West Virginia state court has found otherwise.
The Supreme Court has made clear that Pullman abstention is particularly inappropriate
where, as here, a statute is challenged on its face as violating the First Amendment. See City of
Houston, 482 U.S. at 467-68. Nonetheless, Defendant argues that the Court should ignore the law’s
clear and unambiguous language because of the existence of a separate statute, with separate rights,
unrelated to this law. But Plaintiffs neither invoke nor challenge the West Virginia religious
freedom statute as it is not the statute that is currently being relied upon by Defendant to exclude
their children from school due to their religious beliefs. Equally, Defendant has not made any
pronouncements that EPRA permits or will permit Plaintiffs’ children to attend school with a
religious exemption nor has he indicated a change of course in light of EPRA.
Accordingly, the only question before this Court is whether W.V. Code §16-3-4, on its
face, and as it currently exists and is being implemented, violates the First Amendment. Because
W.V. Code §16-3-4 unambiguously prohibits Plaintiffs’ children from attending school despite
Plaintiffs’ sincerely held religious beliefs, there is nothing ambiguous about the plain meaning of
W.V. Code §16-3-4 for a state court to first resolve before this Court can adjudicate whether, on
its face, it violates Plaintiffs’ free exercise rights under the First Amendment. See Wohl v. Keene,
476 F.2d 171, 174 (4th Cir. 1973) (abstention improper where there is nothing ambiguous about
the challenged statute). In a nearly identical matter, where Mississippi’s school compulsory
vaccination statue was challenged in federal court due to its lack of a religious exemption process
and the Attorney General of Mississippi sought to invoke Pullman abstention due to Mississippi’s
EPRA-equivalent statute, the court there explained that the Mississippi EPRA-equivalent statute
10
did not render the challenged vaccination statute vague, that the compulsory vaccination statute was
unambiguous, and therefore Pullman was inapplicable. See Bosarge et al. v. Edney., No. 1:22-cv-
00233-HSO-BWR, ECF 65 at 15-18 (S.D. Miss. Mar. 9, 2023), attached as Exhibit C. So too here.
B. Pullman is Inapplicable Because the Challenged Statute is Clearly

Unconstitutional & is an Improper Use of Pullman
Pullman abstention is also improper where a law is clearly unconstitutional. See
Thornburgh v. American College of Obstetricians, 476 U.S. 747, 756 (1986); Babbitt v. United
Farm Workers Nat’l., 442 U.S. 289, 305-12 (1979). Federal courts need not defer to state courts
and delay adjudication of a state law that plainly violates the Constitution. See, e.g., City of
Houston, 482 U.S. at 467-68; Harman v. Forsennius, 380 U.S. 528, 535 (1965). The law at issue
plainly violates the First Amendment, as discussed infra.
Moreover, the improper use of Pullman abstention to create costs and delays, which only
prolong and further exacerbate the underlying constitutional harm, was observed almost
immediately after its inception. See Abstention Doctrine Today, 125 U. Pa. L. Rev. 590, 602 (1977)
(discussing “whether delay is not sometimes the aim of the abstention procedure”); see also Fitts
v. Kolb, 779 F. Supp. 1502, 1504 (D.S.C. 1991) (“The United States Supreme Court has also
recognized in several cases that a federal court should be particularly hesitant in abstaining in cases
involving First Amendment violations…[e]ven in situations where the traditional criteria for
Pullman abstention have been met … [because] delay might significantly undermine fundamental
constitutional guarantees. Delay may be particularly harmful in cases which involve a first
amendment challenge, since the longer the delay in obtaining a final decision on the constitutional
question the greater the chill on the exercise of the first amendment right that may result.”).
Here, sending Plaintiffs into the state court system on a claim they never asserted and do
not intend to assert, concerning a statute that Defendant has never even claimed would require him
11
to accept and issue religious exemptions, when Plaintiffs’ First Amendment Free Exercise rights
are clearly and plainly being violated, reflects a use of Pullman that various courts and other
judicial scholars have warned against. See, e.g., England v. La. State Bd. of Med. Exam’rs, 375
U.S. 411, 425 (1964) (“Shuttling the parties between state and federal tribunals is a sure way of
defeating the ends of justice . . . The parties are entitled -- absent unique and rare situations -- to
adjudication of their rights in the tribunals which Congress has empowered to act.” Douglas, J.,
concurring). Even the Attorney General of West Virginia, charged with defending the
constitutionality of West Virginia laws, agrees that Plaintiffs’ First Amendment free exercise rights
have been violated by the lack of a religious exemption in the CVL. See ECF 28. Thus, Pullman
abstention is also inapplicable because the CVL plainly violates the First Amendment.
C. It Would Be Improper to Create a State Court Exhaustion Requirement For

§ 1983 Claims
Pullman abstention is also improper here because it would create a state court exhaustion
requirement in West Virginia to any claim under 42 U.S.C. § 1983 for violation of free exercise
under the First Amendment. See Steffel v. Thompson, 415 U.S. 452, 472-73 (1974)) (“when federal
claims are premised on 42 U.S.C. § 1983 . . . we have not required exhaustion of state judicial . . .
remedies, recognizing the paramount role Congress has assigned to the federal courts to protect
constitutional rights.”); Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167 (2019) (“[T]he settled rule is
that exhaustion of state remedies is not a prerequisite to an action under [42 U. S. C.] §1983”)
(internal citations omitted). The Supreme Court has made clear it abhors state laws or schemes that
seek to insulate the state from the reach of 42 U.S.C. § 1983. Id.; see also Haywood v. Drown, 556
U.S. 729 (2009) (a state “may not shut the courthouse door to federal claims that it considers at
odds with its local policy”). Application of Pullman here would improperly create a judicial
requirement that every Free Exercise claim brought in federal court challenging a state law must
12
first be adjudicated in state court under EPRA. This should not be countenanced. This creates delay
in obtaining relief, while irreparably injuring litigants due to the loss of First Amendment
freedoms. See Elrod v. Burns, 427 U.S. 347, 373 (1976).
Moreover, the Supreme Court cautioned against Defendant’s suggested approach because
it “would convert abstention from the exception into the general rule,” which would then
effectively nullify the ability for West Virginia federal court to adjudicate First Amendment free
exercise claims. Examining Board of Engineers, Architects and Surveyors v. Otero, 426 U.S. 572,
598 (1976); see also Wisconsin v. Constantineau, 400 U.S. 433 (1971); Stultz v. VA DMV, 185 F.
Supp. 3d 890 (W.D. Va. Aug. 5, 2015) (“abstention from the exercise of federal jurisdiction is the
exception, not the rule.”) (citing Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 813 (1976); Zwickler v. Koota, 389 U.S. 241, 252 (1967) (“suffer[ing] the delay of state
court proceedings might itself effect the impermissible chilling of the very constitutional right
[plaintiff] seeks to protect”). The Court should decline Defendant’s suggestion to make EPRA an
exhaustion requirement for any First Amendment claim in West Virginia.
V. Plaintiffs Have Satisfied Ex Parte Young
Ex parte Young, 209 U.S. 123, 130-131 (1908) permits suits for prospective declaratory
and injunctive relief against state officers who enforce or have a sufficient connection with a statute
regarding its enforcement. In such cases, citizens can bring suits against a state officer, in his
official capacity, where he has a “special relation” to the challenged act. Id. at 157. To meet the
“special relation” requirement, the challenged official must have “proximity to and responsibility
for the challenged state action,” ensuring “that a federal injunction will be effective with respect
to the underlying claim.” South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, 332-33
(4th Cir. 2008). This test does not require that the challenged statute specify the official’s role, but
where there are express obligations, the officer’s duty is made clearer. See Ex Parte Young, 209
13
U.S. at 157. Ultimately, the “important and material fact” is that “the state officer, by virtue of his
office, has some connection with the enforcement of the act.” Id. (Emphasis added.).
Here, there are a myriad of statutory duties that establish that Dr. Christensen, the
Defendant, has sufficient statutory duties to connect him to the challenged law. First, under W.V.
Code §16-3-4(d), persons who attempt to enroll in schools in contravention of the immunization
requirement are required to be reported to him. Second, Defendant is authorized to permit medical
exemptions to the requirements under W.V. Code §16-3-4(h). Third, Defendant is empowered to
detain and arrest persons who violate W.V. Code §16-3-4, pursuant to W.V. Code §16-3-1. He
similarly is specifically charged with enforcement of all West Virginia public health laws, to
include W.V. Code §16-3-4, pursuant to W.V. Code § 16-1-6(2) and (5). To that end, Defendant
has promulgated regulations, an entire series of them in fact, that include express statements about
his enforcement of the foregoing provisions. See W. Va. CSR § 64-95-1 (“The [Defendant] has
the authority to provide information or guidance to the public regarding the agency’s
interpretations, policy or opinions upon the law enforced or administered by the [Defendant].
W. Va. Code §29A-1-2. … the rule will provide the public with information and clearly define the
requirements and recommendations for immunizations for all children enrolled in a public, private,
or parochial school in this state, or a state-regulated child care center”) (emphasis added); see also
W. Va. CSR § 64-95-14 (“A child who is delinquent for any required vaccination, or who has
exceeded the provisional enrollment period, will be considered not to be in compliance with the
law and this rule, and will be suspended from attending school until the appropriate vaccine(s) or
laboratory evidence is received and the records are amended.”).
It is disingenuous for the Defendant, having issued public administrative rules that outlines
his enforcement of the statute, to come to federal court and argue the contrary. But that is not all:
14
the Defendant has published explicit statements about what the law requires and about the law’s
lack of religious exemption on his website. 11
Defendant has issued regulations, has an entire website dedicated to compliance with the
statute at issue, and a statutory mandate to enforce same, therefore Defendant clearly has the
proximity and responsibility necessary to establish “some connection” with the challenged statute.
See Ex Parte Young, 209 U.S. at 157; see also, e.g., Bostic v. Schaefer, 760 F.3d 352 (4th Cir.
2014) (holding that circuit court clerk bore the requisite connection to the enforcement of state
marriage laws because the plaintiffs could trace the denial of their rights to the defendant’s role in
enforcing the allegedly unconstitutional law). “Young’s applicability has been tailored to conform
as precisely as possible to those specific situations in which it is necessary to permit the federal
courts to vindicate federal rights and hold state officials responsible to the supreme authority of
the United States.” Papasan v. Allain, 478 U.S. 265, 277 (1986); Griffin v. Cnty. School Bd. of
Prince Edward Cnty., 377 U.S. 218, 228 (1964) (acknowledging that “suits against state []
officials” to enjoin unconstitutional action are permitted under Ex Parte Young).
Defendant similarly raises Article III standing which is comprised of three elements: (1)
an injury in fact; (2) a causal connection between the injury and the conduct complained of; and
(3) an injury that will likely be redressed by a favorable decision. Lujan v. Defs. Of Wildlife, 504
U.S. 555, 561 (1992). For this analysis, only one plaintiff needs standing. Carolina Youth Action
Project v. Wilson, 60 F.4th 770, 778 (4th Cir. 2023). And a plaintiff need not wait until a
government official initiates adverse action to have standing to sue to protect his First Amendment
11
See, e.g., https://oeps.wv.gov/Pages/Medical-Exemptions-Information.aspx; see also https://oeps.wv.gov/
immunizations/Pages/immunization_Requirements.aspx; https://oeps.wv.gov/aboutus/Pages/default.aspx;
(“The Office of Epidemiology and Prevention Services (OEPS) is a part of the West Virginia Department of
Health and Human Resources Bureau for Public Health. … The mission of the West Virginia Division of
Immunization Services (DIS) is to prevent and control vaccine-preventable diseases among children,
adolescents and adults of West Virginia.”).
15
rights. See Steffel v. Thompson, 415 U.S. 452, 459 (1974). A plaintiff alleges sufficient injury in a
pre-enforcement suit by alleging (1) “intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and (2) there exists a credible threat of
prosecution thereunder.” Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018) (internal quotations
omitted).
The individual Plaintiffs plead (and prove via their verifications) that they have sincerely
held religious beliefs that are substantially burdened by the CVL after they sought admission to
school and were rejected by government officials; that they have suffered, and continue to suffer,
coercion and various burdens; and that obtaining an injunction would redress their injury. ECF 1
¶¶ 2, 23-66. This is sufficient for standing. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021); Carter v. Fleming, 879 F.3d 132, 138-140 (4th Cir. 2018). The verified complaint makes
clear that the organizational Plaintiff also has standing. ECF 1 ¶¶ 20-22; see also Hunt v.
Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); Virginia Hosp. Ass’n v.
Baliles, 868 F.2d 653, 662 (4th Cir. 1989).
Plainly, the individual Plaintiffs all have suffered an injury in fact: they are unable to enroll
their children in private and public schools in West Virginia due to the challenged law. And there
is plainly a causal connection between the injury and the conduct complained of. Defendant
suggests that there is nothing that can be redressed here, and that this Court cannot order Defendant
to write a statutory exemption. However, this Court plainly can issue a prohibitory injunction, to
enjoin this Defendant (and those acting in concert with him) from enforcing W.V. Code §16-3-4
against Plaintiffs as he is otherwise charged to do. See Stuart v. Camnitz, 774 F.3d 238 (4th Cir.
2014) (appropriate to enjoin unconstitutional statute). Or it can do what the Mississippi Court did
in Bosarge, 2023 U.S. Dist. LEXIS 67439 and enjoin W.V. Code §16-3-4 generally unless
16
Defendant institutes a mechanism for families to submit religious exemptions just as he allows
families to pursue medical exemptions.
Defendant too-cleverly-by-half argues that he is not statutorily empowered to rewrite
statutes, but at the end of the day, the Supremacy Clause, and 42 U.S.C. § 1983, permits this Court
wide leeway to fashion equitable relief. See United States v. W. T. Grant Co., 345 U.S. 629, 633
(1953) (“discretion is necessarily broad”); see also N.C. State Conf. of the NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016) (“court[s] ha[ve] broad and flexible equitable powers to fashion a
remedy that will fully correct past wrongs”).
Nor does Defendant’s argument that not every school official in the state is a party hold
water. At the end of the day, the fact that other local officials may also be involved in the statutory
enforcement does not prohibit standing or the issuance of injunctive relief against the Defendant.
See Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047-1049 (6th Cir. 2015). That is especially
the case because FRCP 65(d)(2) permits injunctions to run not only to “officers, agents, servants,
employees, and attorneys,” but also to “other persons who are in active concert or participation,”
with those persons. Further, an injunction against Dr. Christiansen redresses the injuries
complained of by Plaintiffs, including testifying they would enroll their children in school in West
Virginia if the Defendant is enjoined. ECF 1 ¶¶ 33-37; ECF 49-2 ¶¶ 18-19, 24-26. In the same
way, the Court in McGee v. Cole, 66 F. Supp. 3d 747, 755 (SD W.Va. Nov. 7, 2014) rejected a
similar argument that additional officials should have been named, observing that “defendants
cannot require that plaintiffs join every possible party, when the parties sued are sufficient to award
the requested relief.” Id. So too here.
17
VI. Both Facially and as Applied, the CVL Violates the First Amendment
A. Defendant Cannot Demonstrate the Challenged Statute is Generally

Applicable Under Fulton
Facially, the CVL fails the general applicability test. Where “the State has in place a system
of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’
without compelling reason.” Fulton, 141 S. Ct. at 1877 (quoting Smith, 494 U.S. at 884). Fulton
holds that exemption schemes that contain even the potential to elevate secular conduct above
religious exercise violates the general applicability test.
West Virginia made an unconstitutional value judgment from the outset that non-
vaccination for secular reasons are “worthy of solicitude” but that non-vaccination for religious
reasons are not. See Fulton 141 S. Ct. at 1878. Thus, the statute fails the general applicability test
from the outset. See, e.g., Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 366 (3d Cir. 1999) (Alito, J.) (holding that a medical exception to policy triggered strict
scrutiny where religious exemptions to the same policy were categorically prohibited on grounds
that the government had made an unconstitutional “value judgment”).
The CVL also lacks general applicability because of how it is applied. Even though the
statute only permits secular motivations for declining vaccination, Defendant suggests strict
scrutiny should not be invoked because he “has not received a single non-medical request,”
implying that if he was confronted with a religious exemption request, he might permit such a
request, statutory prohibitions notwithstanding. ECF 53 at 23. Yet Pastor Figaretti testified that he
called the West Virginia Department of Health and petitioned for a religious exemption for his
18
child, but Health Department officials made clear that religious exemptions were categorically
prohibited in West Virginia and would not be considered. ECF 1 ¶ 100. 12
Defendant further suggests strict scrutiny should not apply because West Virginia’s medical
exemption option is not the type of “individualized exemption” that causes a law to fail the general
applicability test under Smith and Fulton. According to Defendant, this is because medical
exemptions are purportedly granted based on an “objectively defined” criteria. ECF 53 at 23-24.
Defendant is wrong for two reasons.
First, whether strict scrutiny is triggered does not depend on whether a secular exemption is
based on objective criteria. 13 Recall that Fulton also involved secular criteria, just as West
Virginia’s CVL does. 141 S. Ct. at 1875 (the “agency must conduct a home study during which it
considers statutory criteria”). What makes something an individualized exemption scheme, as
explained in Fulton, is the fact that there are criteria that are being applied on a case-by-case basis.
Fulton, 141 S. Ct. at 1879. Defendant here does not suggest that is not the case; he merely glosses
over the holding of Fulton to suggest that he does not have the discretion that the statute, on its
face, in fact affords him. See West Virginia Code § 16-3-4 (h) (“The [Defendant] is authorized to
grant … exemptions to the compulsory immunization requirements of this section…”) (emphasis
added). That is merely the authority (not a requirement) to grant exemptions, and it is plainly
12
An exemption scheme creating categories of exemptions based on secular reasons, while refusing to
extend a similar exemption mechanism for religious objectors, triggers strict scrutiny, even if the secular
exemptions are not subject to individualized review. In such cases, the government’s unconstitutional bias
is baked into the regulation itself. See, e.g., Newark Lodge, 170 F.3d at 365 (“While the Supreme Court did
speak in terms of “individualized exemptions” in Smith and Lukumi, it is clear from those decisions that the
Court's concern was the prospect of the government’s deciding that secular motivations are more important
than religious motivations. If anything, this concern is only further implicated when the government does
not merely create a mechanism for individualized exemptions, but instead, actually creates a categorical
exemption for individuals with a secular objection but not for individuals with a religious objection.”).
13
To be clear, Plaintiffs’ position is that the secular exemption to the Compulsory Vaccination Law is not
based on objective criteria, which is confirmed by, inter alia, Dr. Alvin Moss, who testifies to the subjective
nature of the medical exemption scheme's qualifying criteria. See Exhibit B at ¶¶ 7-12.
19
discretionary. Under Fulton, if a state reserves the authority to “grant exemptions based on the
circumstances underlying each application,” it must provide a compelling reason to exclude
“religious hardship” from its scheme. See Fulton, 141 S. Ct. at 1877 (quoting Smith, 494 U.S. at
884). Fulton, thus, does not speak about objective criteria, but speaks about whether the particular
circumstances or attributes of an exemption applicant drives the exemption scheme. Defendant’s
suggestion that objective criteria would somehow save the instant scheme is directly belied by both
the facts and holding in Fulton. That some courts may have defied the Supreme Court’s clear and
binding precedent in Fulton is no excuse for Defendant to ask this Court to do so.
Fulton is concerned about unconstitutional partiality against religious conduct, not whether
an exemption scheme contains objective criteria. Here, Plaintiffs Pastor Figaretti and Uhl have
actually experienced the unconstitutional partiality the Supreme Court was so concerned about in
Fulton and Smith. See ECF 1 ¶¶ 51, 52, & 100. Moreover, federal courts across the country have
struck down mandatory vaccination schemes under the First Amendment, even though those
policies had clearly defined medical exemptions, because the consideration of such medical
exemptions involved judgment on a case-by-case basis, just as West Virginia’s scheme does. See,
e.g., Bosarge, 2023 U.S. Dist. LEXIS 67439, at *27 (applying strict scrutiny because “there was a
method by which Mississippi officials could consider [and approve or deny] secular exemptions,
particularly medical exemptions”) (citing Fulton, 141 S. Ct. at 1877); see also Dahl v. Bd. of Trs.
of Western Mich. Univ., 15 F.4th 728, 733-734 (6th Cir. 2021) (university vaccination mandate
containing defined medical exemptions struck because the case-by-case consideration of exemption
requests triggered Fulton and strict scrutiny); Seals 1-26 v. Biden, 578 F. Supp. 3d 822, 838 (N.D.
Tex. 2022) (same); Grantonz v. Earley, 2021 U.S. Dist. LEXIS 236429 (N.D. Oh. Dec. 10, 2021)
(same).
20
Second, even if an objectively defined secular exemption scheme could somehow allow the
government to avoid strict scrutiny (and Fulton is clear that it does not), the medical exemptions at
issue here are not based on purely objective criteria. See supra § II. They are subject to
individualized discretion at multiple levels. Id. As Defendant highlights, medical exemption
requests are assessed on a granular level, on a case-by-case basis by multiple government
employees. See Id.; ECF 53 at 23-25 (outlining exemption process). If the medical exemptions were
based on objective criteria lacking bureaucratic discretion, there would be no need for three levels
of administrative appellate review whereby government officials are empowered to uphold or
overturn each medical exemption request. Accordingly, West Virginia’s exemption scheme is
exactly the type of “individualized” and “discretionary” review contemplated by Fulton and Smith
that invokes strict scrutiny.
Because the challenged statute is not generally applicable, Defendant’s reliance on
Jacobson v. Massachusetts, 197 U.S. 11 (1905), Zucht v. King, 260 U.S. 174 (1922) and Prince v.
Massachusetts, 321 U.S. 158 (1944) is outdated and misplaced, and these cases are easily
distinguishable. These dated cases simply did not involve a secular exemption scheme that existed
without permitting religious exemptions. And in the last two years, the Supreme Court has made
abundantly clear that policies that permit secular but not similar religious activity will not be
tolerated. See, e.g., Fulton, 141 S. Ct. at 1877; Tandon, 141 S. Ct. at 1296; Rom. Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020).
If that were not enough to distinguish these cases, all three pre-date the general applicability
test in Smith. All three were also issued prior to incorporation of the Free Exercise Clause against
the states. Moreover, Jacobson involved a vaccination-or-fine scheme in the context of an ongoing
outbreak, Zucht did not involve a Free Exercise claim, and Prince involved mere dicta in the context
21
of truancy laws regarding literature being handed out and religious beliefs. And if all of that were
not enough, and putting aside this case is not about challenging any vaccine mandate, rather just
the lack of a religious exemption, the core holding in those cases was that the government can enact
vaccination mandates that prevent transmission (which is not applicable to four of the six vaccines
at issue in this case) in furtherance of a general police power that did not involve a recognized
fundamental right, freedom of religion here, which applies to all the vaccines at issue here.
Where vaccination mandates burden religious beliefs, federal courts applying recent
Supreme Court precedent have struck down such policies at a blistering pace. See, e.g., Bosarge,
2023 U.S. Dist. LEXIS 67439, at *27; Doster v. Kendall, 54 F. 4th 398 (6th Cir. 2022); Dahl v. Bd.
of Trs. of Western Mich. Univ., 15 F.4th 728 (6th Cir. 2021); Seals 1-26 v. Biden, 578 F. Supp. 3d
822 (N.D. Tex. 2022); Col. Fin. Mgmt. Officer v. Austin, 2022 U.S. Dist. LEXIS 153590 (M.D. Fla.
Aug. 18, 2022); and Thoms v. Maricopa Cnty. Cmty. Coll. Dist., No. CV-21-01781-PHX-SPL, at
*16 (D. Ariz. Nov. 5, 2021).
B. Defendant Cannot Demonstrate the Challenged Statute Is Neutral and

Generally Applicable Under Tandon
Even if Defendant could somehow evade strict scrutiny under Fulton, the CVL lacks
neutrality and general applicability under Tandon, 141 S. Ct. 1294. Government regulations “are
not neutral and generally applicable and therefore trigger strict scrutiny under the free exercise
clause of the First Amendment, whenever they treat any comparable secular activity more
favorably than religious exercise.” Tandon, 141 S. Ct. at 1296 (citing Diocese of Brooklyn, 141 S.
Ct. at 67) (emphasis in original). Defendant asserts the challenged statute escapes Tandon’s reach
on grounds that medical and religious exemptions do not encapsulate “comparable activity.” ECF
53 at 19. Yet, non-vaccination for religious reasons is not only comparable to non-vaccination for
22
medical reasons, the two activities are exactly the same; thus, the statute triggers strict scrutiny for
this reason alone.
Nonetheless, Defendant assert that it is more dangerous if a child declines vaccination for
religious reasons than if a child opts out of compelled vaccination for medical reasons. ECF 53 at
20. This is an unsupportable position according to the Supreme Court. See Tandon, 141 S. Ct. at
1297 (holding that the government cannot “assume the worst when people [exercise their religion]
but assume the best when people [engage in secular activities]”) (internal citations and quotations
omitted); see also Seals, 578 F. Supp. 3d 822, 838 (“no matter how small the number of secular
exemptions by comparison [to number of religious exemptions that may be
submitted], any favorable treatment . . . triggers strict scrutiny under the First Amendment”).
Defendant argues that the possibility of a religious exemption would undermine the State’s
interest, while medical exemptions allegedly do not, and thus concludes the activities at issue are
not comparable under Tandon. Whether two activities are comparable for purposes of the free
exercise clause depends on “the asserted government interest that justifies the regulation at issue.”
Tandon, 141 S. Ct. at 1296. What constitutes the official government interest is assessed not by
the State’s proposed post-hoc litigation, and ever-changing assertions, but by the government’s
actions and what is logical in context. For example, in Tandon, California argued that its goal in
containing COVID-19 was limited to certain types of religious gatherings and, based on this
narrowly defined state interest, allowing citizens to gather in barbershops and at sporting events
did not undermine its purportedly compelling interest to limit religious gatherings. The Supreme
Court rejected this nonsensical argument, reasoning that comparability “is concerned with the risks
various activities pose, not the reasons why people gather.” Id.
23
Critically, where First Amendment violations are at issue, courts cannot rely on “broadly
formulated” governmental interests, but must “‘scrutinize[] the asserted harm of granting specific
exemptions to particular religious claimants.” Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 431 (2006). Accordingly, the question in this case “is not whether the
[Government] has a compelling interest in enforcing its [vaccination mandate] generally, but
whether it has such an interest in denying an exception” from that requirement to an individual
plaintiff specifically. Fulton, 141 S. Ct. at 1881. Defendant does not contest that this is the
applicable standard but fails to establish that a child declining vaccination for secular reasons is
less of a purported transmission risk than a child declining from vaccination for religious reasons.
The state interests have been defined by the West Virginia Legislature in W.V. Code § 16-
3 as furthering “public health and safety” and the control of disease. W.V. Code § 16-3-1. In a
clever attempt to evade strict scrutiny and perhaps a problematic “broadly formulated” interest,
Defendant dismisses these previously defined broadly formulated interests and instead engages in
a contradictory “throw it against the wall and see what sticks” approach to newly claimed state
interests, asserting varying state interests that are in hopeless tension with each other. This cherry-
picking and post-hoc litigation gamesmanship approach to government interests should be viewed
with the skepticism it deserves. Yet each asserted interest suffers from serious under-inclusivity
problems, raising “doubts about whether the government is in fact pursuing the interest it invokes,
rather than disfavoring a particular [group].” Brown v. Entm't Merchs. Ass’n, Brown, 564 U. S.
786, 802 (2011), citing City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994); Florida Star v. B. J. F.,
491 U.S. 524, 540 (1989); see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520,
543-547 (1993) (the Supreme Court invalidated a city’s ban on ritual animal sacrifices because the
city failed to regulate similar secular conduct that diminished its asserted interests in public health
24
and animal welfare); Smith v. Daily Mail Publishing Co., 443 U. S. 97, 104-105 (1979)
(invalidating a state’s decision to prohibit newspapers, but not electronic media, from releasing the
names of juvenile defendants suggesting that the law did not advance its stated purpose of
protecting youth privacy). So too here.
First, Defendant claims an interest in “prevent[ing] outbreaks” of infectious diseases. ECF
53 at 30. However, a child with a medical exemption undermines this interest in the exact same
way that a child with a religious exemption would, in that a child with a medical exemption can
transmit a disease just as readily as a child with a religious exemption, yet medically exempt
children are permitted to be in school unvaccinated.
This asserted interest is further undermined by the fact that West Virginia has not mandated
the COVID-19 vaccine for school (or vaccines for other infectious diseases for which vaccines
exist), undermining Defendant’s assertion about preventing outbreaks of disease being the interest
at issue, W.V. Code §§ 16-3-4b, 16-3-4c; and this alleged interest is further undermined because,
aside from school, these same children can gather in every other imaginable setting.
That asserted interest equally fails where the vast majority of vaccines on the State’s
schedule do not prevent or even slow or transmission of diseases Defendant claims to be concerned
about, and instead only offer personal protection at best, and if anything make children receiving
these vaccines more likely to silently spread, for example, pertussis. 14 Similarly, unvaccinated
adults in general, including adults working in the school system, damage West Virginia’s proposed
health and safety interest to a greater degree than a child with a religious exemption would.
Second, Defendant alternatively proposes that the underlying State interest in requiring
childhood vaccination is actually the hyper-generalized goal of “protecting the health of the State”
14
See ECF 44 at 5, fn. 2; see also ECF 49 at 9, fn. 8; Siri ¶¶ 3-15.
25
and “the community” at large. ECF 53 at 19, 22. Again, a medically exempt child undermines the
State’s health and safety interest in the exact same way that a child with a religious exemption
would, and the same facts, arguments, and circumstances that undermine the first alleged
compelling interest undermines this alleged compelling interest as well.
Third, Defendant alternatively proposes the alleged compelling interest of protecting health
in locations where people are “required” to gather, namely, in school. Id. at 22. Yet we know that
asserted interest is not, in fact, the interest that the West Virginia legislature finds compelling
because at the very least, (i) people are required to gather in courthouses, for jury duty, without a
vaccination requirement; see W.V. Code § 52-1; (ii) people are required to gather for government
meetings, without a vaccination requirement (and in fact, with an express statutory requirement
that the public cannot be excluded), W.V. Code §6-9A-3; and (iii) adults in schools where this
requirement to gather exists are not required to be vaccinated. Similarly, in Tandon, California
attempted to define its objective in mitigating infectious diseases as restricted to certain places
(worship services) under the guise that such services were not essential to attend, but that an
assortment of other secular activities were essential (e.g., shopping). The Supreme Court rejected
that irrational argument. This Court should do the same. Permitting adults and children to gather
en masse for every activity imaginable, including other required gatherings, without showing proof
of vaccination—e.g., for a University of West Virginia basketball game or participating in a
wrestling match—constitutes “comparable activity” under Tandon. It bears re-emphasizing that
where the government permits comparable secular activities, it is the burden of the government to
“show that the religious exercise at issue is more dangerous” than the secular activity the
government permits, Tandon, 141 S. Ct. at 1297.
26
Even more problematic for Defendant’s argument is that West Virginia allows an unlimited
number of children to congregate in a school setting without showing proof of vaccination. Under
W.V. Code § 18-8-1, the State permits unvaccinated children to be educated in learning pods. This
too constitutes “comparable activity” under Tandon. And nothing keeps unvaccinated children,
and the public at large, from attending sporting and other events at schools.
Perhaps recognizing that the first three asserted interests are fatally undermined by under-
inclusivity, Defendant attempts a fourth, arguing that the State’s interest is to protect the handful
of children possessing medical exemptions. See ECF No. 53 at 19. This justification also does not
withstand any scrutiny. If protecting these children, who are presumably immunocompromised,
and their ability to obtain an education with minimal risk of disease was in fact the goal, then adults
in schools would be required to be vaccinated; West Virginia would not have provided a statutory
prohibition on vaccinating for COVID-19, W.V. Code §§ 16-3-4b, 16-3-4c, as well as other
communicable diseases for which vaccines exist but not required to attend school; would take
precautions to protect them from vaccinated children who are less likely to have symptoms of
diseases like pertussis, and hence less likely to stay home from school, but equally capable of
becoming infected with and transmitting pertussis; and West Virginia would have taken additional
steps to protect these children from the over 1,000 pathogens for which no vaccine exists. See infra
§ II. And to be narrowly tailored to avoid violating the First Amendment, such requirements would
only exist at schools where such children are in fact attending.
At bottom, Defendant’s asserted state interests are at war with each other. The goal of
curtailing infectious disease and its spread cannot co-exist with Defendant’s purported interest in
ensuring medically exempt children are not harmed by vaccines. As an initial matter, if attending
school were in fact “required” then Plaintiffs’ children would be in school. The asserted interest
27
of only requiring vaccines where people are purportedly “required” to gather is, in any event,
undermined by the fact that spread can occur any place people gather and if one wants to go to
church, playgrounds, malls, movie theaters, or most other public places, they are “required” to be
where people gather, no less so than if they choose to go to school. Further, even if these
contradictory objectives could be reconciled, the State is actively undermining its goal of
purportedly protecting medically vulnerable children; placing these children in the school system
where they are exposed to all sorts of pathogens where a vaccine does not prevent spread of the
pathogen (but in fact makes silent spread more likely, as with the pertussis vaccine), vaccine exists
that may prevent spread but is not mandated, or for the over 1,000 known pathogens for which no
vaccines exist does not further the State’s stated interest in purportedly protecting medically
exempt children.
Defendant is merely attempting to use a handful of medically vulnerable children to justify
trampling on the religious freedoms of a minuscule fraction of families with religious objections
to compelled vaccination. Because the State allows a variety of comparable activities that
undermine the multitude of inconsistent government interests Defendant proposes, Tandon
dictates strict scrutiny.
C. Strict Scrutiny Applies on Alternative Grounds Because This Case Involves

Recognized “Hybrid Rights”
Defendant suggests the hybrid rights discussion in Smith is dicta. (ECF 53 at 26-27). Yet
Smith relied on the holdings of prior Supreme Court cases which established that hybrid right
situations trigger strict scrutiny. Employment Div. v. Smith, 494 U.S. 872, 881-882 (1990), citing
Cantwell v. Connecticut, 310 U.S. 296, 304-307 (1940) (freedom of speech hybrid rights), Pierce
v. Society of Sisters, 268 U.S. 510 (1925) (freedom of parents to direct the education of their
28
children), Wisconsin v. Yoder, 406 U.S. 205 (1972) (same), and Roberts v. United States Jaycees,
468 U.S. 609, 622 (1984) (association hybrid right).
None of those cases have been overturned, and Smith merely made clear that they were
each still good law. Thus, Defendant’s suggestion about mere dicta is nonsense. In addition,
members of the U.S. Supreme Court have expressed their ire when courts have disregarded Smith’s
holding and refused to recognize hybrid-rights. Fulton, 141 S. Ct. 1868, 1888 (Alito, Thomas,
Gorsuch, concurring).
Contrary to Defendant’s assertions, courts across the country have found hybrid rights
claims like those presented here trigger strict scrutiny. See, e.g., Archdiocese of Washington v.
WMATA, 897 F. 3d 314, 331, 437 U.S. App. D.C. 461 (D.C. Cir. 2018); Brown v. Hot, Sexy and
Safer Productions, 68 F. 3d 525, 539 (1st Cir. 1995); Cornerstone Christian Schools v. University
Interscholastic League, 563 F. 3d 127, 136, n. 8 (5th Cir. 2009); San Jose Christian College v.
Morgan Hill, 360 F. 3d 1024, 1032-1033 (9th Cir. 2004). Plaintiffs maintain Smith’s hybrid rights
analysis stands as settled law, and that the hybrid rights presented here are subject to strict scrutiny.
For preservation purposes, however, Plaintiffs submit that Smith should be overruled in
favor of a stand-alone Free Exercise right on par with other fundamental rights such as that
recognized under the Second Amendment.
D. The CVL Cannot Survive Strict Scrutiny
1. Defendant Failed to Demonstrate that the State’s Interests are Sufficiently

“Compelling”
As described above, Defendant attempts to assert five mutually exclusive purported
government interests justifying the CVL as follows: (1) ensuring unvaccinated medically exempt
children are not harmed by vaccines [ECF 53 at 20]; but also (2) preventing even the remote
possibility of an infectious disease outbreak [Id. at 30]; and also (3) to prevent outbreaks
29
exclusively in a subset of the population (children) [Id. at 28]; and to (4) counteract infectious
disease solely in school settings [Id. at 22]; and lastly, (5) protecting the health and safety of the
general “community.” [Id. at 19]. Defendant asserts that these contradictory interests are
unquestionably “compelling” for purposes of satisfying strict scrutiny under the First Amendment.
When First Amendment violations are at issue, the government cannot support a compelling
interest when it actively and fundamentally undercuts that interest. Church of Lukumi, 508 U.S. at
543-547; Brown, 564 U. S. 786, 802; City of Ladue, 512 U.S. 43, 51; Florida Star, 491 U.S. 524,
540; Smith, 443 U. S. 97, 104-105. As already explained, infra at Section VI(D)(2), the varying
claimed interests are undermined by numerous factors and also contradict one another.
Defendant is also wrong for other reasons. First, by any reasonable measure, the State’s
objectives have already been fulfilled: West Virginia has one of the highest vaccination rates in
the Nation. Thus, while the mutually exclusive purported interests that Defendant advances could
be facially commendable in the abstract, they are not sufficiently compelling when applied
specifically to each Plaintiff.
Second, even when analyzed on a broad abstract level, the State’s goals are insufficiently
compelling because West Virginia has shown by action and inaction that universal vaccination of
schoolchildren is not actually a public health imperative. The State allows medical exemptions, is
lax in enforcing the CVL, recently passed legislation allowing childhood education in “learning
pods” without vaccination requirements, and passed legislation prohibiting any COVID-19
vaccination requirements. Therefore, having severely undermined its stated goals in a variety of ways
(and there are more), the State cannot now credibly argue its interests are sufficiently compelling.
Defendant cites a series of pre-Tandon and Fulton cases for the general proposition that
the “health and well-being of young children” and preventing infectious diseases unquestionably
30
constitute compelling interests for purposes of satisfying strict scrutiny. Id. at 27. However, the
Fulton Court recently made clear that a compelling interest in the abstract will not satisfy strict
scrutiny when First Amendment freedoms are at issue. West Virginia must demonstrate its
compelling interests are satisfied with respect to the individual. See, e.g., Fulton, 141 S. Ct. at 1881
(the question “is not whether the [Government] has a compelling interest in enforcing its
[vaccination mandate] generally, but whether it has such an interest in denying an exception” from
that requirement to an individual plaintiff specifically). Defendant does not argue this standard can
be met here. That is because it cannot be. Further, West Virginia allows learning pods where
unvaccinated children congregate in unlimited numbers to learn in school settings. Having shown
it can accomplish its public health goals without universal vaccination in educational settings, the
State can likewise allow religious families to educate their children in public and private schools.
It must also be emphasized that even if vaccinating schoolchildren constitutes a vital
interest, that objective has by any reasonable measure already been fulfilled. According to CDC
data, West Virginia boasts one of the highest early childhood vaccination rates in the country. 15
Thus, the State’s myopic vaccination drive is now directed at a tiny subset of children, including
an even smaller subset who remain unvaccinated for religious reasons. While the government may
“have a compelling interest in the abstract,” that does not mean that it has one “in each marginal
percentage point by which” it achieves its general goals. Brown, 564 U.S. 786, 803 n.9; see also
Doster, 54 F.4th at 422 (holding the government did not possess a compelling interest in
vaccinating a small fraction of airmen who declined vaccination for religious reasons). Because
West Virginia has already fulfilled its purported goals, the State cannot show its interests are
adequately compelling when applied to each Plaintiff.
15
See fn. 8.
31
Further, West Virginia cannot even show it possesses a sufficiently compelling interest in
the abstract. A law “cannot be regarded as protecting an interest of the highest order when it leaves
appreciable damage to that supposedly vital interest unprohibited.” Church of Lukumi, 508 U.S. at
547. Even during an international pandemic, courts across the country have found the government
interests underlying mandatory vaccination policies are insufficiently compelling where secular
exceptions are granted. See, e.g., Doster, 54 F. 4th at 423; U.S. Navy Seals 1-26 v. Biden, 27 F.4th
336, 352 (5th Cir. 2022). Defendant attempts to distinguish Doster on grounds that the Air Force
granted more medical exemptions in Doster than West Virginia has granted in this case. ECF 53
at 28. Defendant is correct that there were a few more medical exemptions numerically across a
larger population. The material distinction, however, is that Doster confronted a vaccine mandate
during the COVID-19 pandemic, declared to be the greatest public health crisis in the past
century. 16 The Air Force unquestionably possessed a greater interest than what West Virginia can
claim here. Even then, however, the Air Force failed to substantiate sufficiently compelling
justifications to eradicate the religious freedoms of its airmen.
Again, West Virginia permits unvaccinated children to gather in large groups in learning
pods. The recent addition of this option, as well as the complete prohibition of any COVID-19
vaccination requirements anywhere in West Virginia (likewise, West Virginia does not require
vaccines for diseases reported in West Virginia for which a vaccine exists, but are not mandated,
16
This case does not even involve a disease that is in the middle of what has been declared a full-blown
global pandemic and so Defendant’s reliance on We the Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir.
2021) and Doe v. Mills, 16 F.4th 20 (1st Cir. 2022) are misplaced. Doe and Patriots confronted the issue of
whether medical workers caring for COVID-19 patients were entitled to seek religious exemptions. Unlike
here, where lax enforcement reigns, New York and Maine in Doe and Patriots were strictly enforcing their
healthcare worker vaccination requirements (demonstrating that the state actors in those cases at least
actually believed they had an actual compelling interest rather than the post-hoc, exception-ridden scheme
at issue here). Moreover, there is no public health imperative here to ensure healthcare workers remain on
the front lines during a pandemic, as in Doe and Patriots.
32
nor take any precautions for diseases where vaccines are mandated but do not prevent
transmission), distinguishes this case from the non-binding precedent Defendant relies upon to
establish a purported compelling interest. See, e.g., Workman v. Mingo County Bd. of Educ., 419
Fed. Appx. 348, 353 (4th Cir 2011) (finding a compelling state interest in mandatory vaccination
before West Virginia had passed legislation in 2022 permitting learning pods); D.J. v. Mercer
County Bd. of Educ., 2013 W. Va. WL 6152363, *4 (W.V. Nov. 22, 2013) (same). Notably, these
cases were decided before directly on point Supreme Court precedent in Tandon and Fulton.
In sum, Defendant has failed to demonstrate the State’s interests are sufficiently compelling
to satisfy strict scrutiny. West Virginia is requiring that Plaintiffs violate their religious convictions
as a prerequisite to educating their children, while the State is actively undercutting its purportedly
vital interests in many ways. Consequently, for these reasons alone, the CVL cannot survive strict
scrutiny.
2. Defendant Failed to Demonstrate the Law is Narrowly Tailored
The CVL cannot withstand strict scrutiny on alternative grounds because it is not narrowly
tailored. When strict scrutiny applies, a government policy survives “only if it advances interests
of the highest order and is narrowly tailored to achieve those interests,” meaning that “so long as
the government can achieve its interests in a manner that does not burden religion, it must do
so.” Fulton, 141 S. Ct. at 1881 (quotation omitted). Given this incredibly high standard, a law will
survive strict scrutiny “only in rare cases.” Church of Lukumi, 508 U.S. at 578.
Under-inclusivity, namely the concept that the government does not address other
problems and issues that equally undermine their interests, permeates the CVL. Church of Lukumi,
508 U.S. at 578. Under-inclusivity is a problem not only because it undermines asserted
compelling interests, Id., suggesting the interests are not in fact compelling, but also because it
presents a problem for narrow tailoring. And there are numerous under-inclusivity problems here,
33
namely (i) permitting unvaccinated adults in schools; (ii) permitting medical exemptions to the
same requirement (except for the interest regarding protecting medically vulnerable children); (iii)
permitting learning pods without vaccination requirements; (iv) West Virginia’s COVID-19
vaccination prohibitions; (v) West Virginia’s lack of requirements for other vaccines of infectious
diseases in West Virginia for which vaccines exist, (vi) West Virginia’s lack of enforcement for
approximately 2-3.5%, depending on vaccine, of the student population that is non-compliant, (vii)
West Virginia’s permitting people and children, to gather in other locations, including where
people are mandated to gather, and West Virginia’s stance towards permitting children who are
not vaccinated, to roam about the community at large (including on school grounds for sporting
events that are open to the public) are examples of this under-inclusivity.
According to Defendant, the CVL is not underinclusive because school is the only place
where children are “mandated” to gather en masse. ECF 53 at 30. But that conveniently ignores
that adults are permitted to be in schools unvaccinated, those with medical exemptions are
permitted to be in school unvaccinated, ignores the learning pod issue, the absolute prohibition on
COVID-19 vaccines, and the fact that if the vaccines are actually effective, as Defendant suggests,
there should be no danger to the vaccinated students in the school setting in any event. When
counteracting infectious disease, whether people are required to gather in large groups or
congregate voluntarily is irrelevant. While Defendant contends that West Virginia’s goal is to
prevent even the possibility for communicable disease outbreaks, compulsory vaccination directed
exclusively at schoolchildren is underinclusive relative to that goal. The Supreme Court rejected
similar arguments in Tandon and Diocese of Brooklyn, where California and New York allowed
citizens to congregate in large groups while restricting religious activity that posed similar
transmission risks. West Virginia permits unvaccinated children and adults to congregate en masse
34
in every setting imaginable. Even if the goal of preventing infectious disease could somehow
logically be limited to children in school settings, the CVL is nonetheless underinclusive because
the State allows medical exemptions and also permits unvaccinated children to study in unlimited
numbers under W.V. Code § 18-8-1.
Overbreadth, the concept that the law does more than it needs to, to meet the asserted
governmental interests is also at play. That overbreadth is demonstrated by the following: (i) West
Virginia requires four vaccines that do not, in fact, prevent spread or transmission in school; (ii)
West Virginia requires vaccination in schools that do not enroll medically vulnerable children (for
the interest about protecting medically vulnerable children); (iii) West Virginia has a high
vaccination rate; (iv) assuming the vaccines are as effective as Defendant contends, those who are
vaccinated are protected; (v) sanitation and disease surveillance prevent diseases and is effective
at managing outbreaks; (vi) outbreaks cannot be fully prevented and thus segregation and
quarantine are sufficient to meet the asserted government interests; and (vii) other states that permit
religious exemptions but do not have outbreaks.
Defendant argues prohibiting unvaccinated children from attending school is the “least
restrictive” option available to accomplish the State’s objective of preventing infectious diseases.
ECF 53 at 30. That is curious at best when one considers the vast majority of the vaccines on the
school schedule do not actually protect, or even assist, with eliminating or even minimizing the
transmission of the target pathogen. Requiring families to violate their religious beliefs to access
the State’s education system is the most restrictive option imaginable, and there are many
alternatives the government could deploy to accomplish its public health goals (such as quarantine
protocols in the rare event of an outbreak, increased enforcement measures, enhanced sanitation
methods, or any combination of the above).
35
Defendant claims that even though 45 states allow religious exemptions—most of which
have quarantine protocols in the event of an outbreak—this is a “red herring” that does not
demonstrate that less restrictive means exist which can be seamlessly implemented. ECF 53 at 28-
29. According to Defendant, this is because West Virginia’s interest is “preventing, not responding
to, outbreaks.” ECF 53 at 30. However, preventing outbreaks is an abstract, immeasurable, and
unattainable goal, an objective that does not require eliminating religious exemptions. This is
especially true given that even if the threat of an outbreak were real, Plaintiffs are families with
sincerely held religious beliefs who will never vaccinate their children. Yet these same children
gather regularly, in group events, with routine, just as unvaccinated adults do – excluding them
from school and allowing them everywhere else in the state will not prevent Defendant’s
theoretical outbreak.
Moreover, other evidence reveals that compulsory universal vaccination does not in fact
achieve the purported interests Defendant asserts. For instance, in 2015, California repealed its
religious exemption. Nonetheless, in the following years, there have been several measles
outbreaks in California. 17 This is unsurprising, given that the MMR vaccine is not a completely
sterilizing vaccine (meaning vaccinated individuals can still contract the disease).
Thus, compelled vaccination, like better sanitation standards or quarantine protocols, is at
best a mitigation strategy. To the extent universal vaccination is West Virginia’s preferred method,
the State has already achieved that goal through its greater than 98% childhood vaccination rate.
For the tiny subset of children who remain unvaccinated for religious reasons, Defendant can
deploy the less restrictive alternatives described above.
17
See California Department of Health, Immunization Branch, available at
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/measles.aspx.
36
Defendant does not wrestle with possible less restrictive alternatives, but rather focuses his
narrow tailoring argument almost exclusively on the specter of a measles outbreak. However, in
doing so, Defendant does not address the overbreadth of the law, namely that, according to FDA
and CDC documents, at least three vaccines – IPV, HenACWY, and DTaP/Tdap – of the six
required under the CVL do not prevent infection or transmission of the targeted pathogen, and a
fourth – HepB – is not for a disease transmitted in a school setting. See ECF 44 at 5, fn. 2; see also
ECF 49 at 9, fn. 8; Siri ¶¶ 3-15. Consequently, these four vaccines provide, at best, an undefined
level of personal protection, which Plaintiffs decline. If the government’s goal is to eliminate even
the possibility for outbreaks, then requiring Plaintiffs to violate their religious beliefs by injecting
vaccines incapable of preventing outbreaks is obviously not a narrowly tailored solution.
Considering these factors, the CVL is plainly overbroad, lacking the requisite narrow tailoring to
survive strict scrutiny. See Church of Lukumi, 508 U.S. at 578 (holding the government may not
create “an overinclusive statute, one that encompasses more protected conduct than necessary to
achieve its goal.”).
West Virginia’s Attorney General, even though tasked with defending the State’s laws,
recognizes the CVL is unconstitutional and that West Virginians’ First Amendment rights have
been violated here. See ECF 28-1 at 10 (forty-four states utilize a “less restrictive means” of
furthering their public health goals “by allowing for religious exemptions to mandatory
immunizations for those with religious objections. It is clear the overwhelming majority of states
have found that they can both further the state’s compelling interest in preventing the spread of
diseases in public schools and also allow families to freely exercise their First Amendment
Right[s]”).
37
In an almost identical case, Mississippi's Attorney General similarly conceded that
Mississippi's childhood vaccination scheme could not survive strict scrutiny. See Bosarge, 2023
U.S. Dist. LEXIS 67439, at *12 (S.D. Miss. Apr. 18, 2023) (the “Attorney General essentially
acknowledges that, read in insolation, [Mississippi's childhood vaccination law] cannot withstand
strict scrutiny.”).
Because it cannot withstand strict scrutiny review, the CVL is unconstitutional. The only
federal court to confront this issue post Fulton and Tandon determined that where the government
permits discretionary medical exemptions, it must afford the option for religious exemptions.
Bosarge, 2023 U.S. Dist. LEXIS 67439, at *27 (S.D. Miss. Apr. 18, 2023) (finding likely First
Amendment violation because “there was a method by which Mississippi officials could consider
[and approve or deny] secular exemptions, particularly medical exemptions,” but not religious
exemptions) (citing Fulton, 141 S. Ct. at 1877). This Court should determine the same.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion
for Summary Judgment and deny Defendant’s Cross Motion for Summary Judgment in its entirety.
38
Dated: July 21, 2023. Respectfully submitted,
JOHN BRYAN LAW
/s/ John H. Bryan

John H. Bryan, Attorney
West Virginia Bar No. 102159
411 Main Street
P.O. Box 366
Union, West Virginia 24983
Tel: (304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com
SIRI & GLIMSTAD LLP

Aaron Siri, Esq. (admitted PHV)
Elizabeth A. Brehm, Esq. (admitted PHV)
Walker D. Moller, Esq. (admitted PHV)
Suzanne Heywood, Esq. (admitted PHV)
745 Fifth Ave, Suite 500
New York, NY 10151
Tel: (212) 532-1091
Fax: (646) 417-5967
aaron@sirillp.com
ebrehm@sirillp.com
wmoller@sirillp.com
sheywood@sirillp.com
Christopher Wiest (admitted PHV)

25 Town Center Blvd., Suite 104
Crestview, KY 41017
Tel: (513) 257-1895
Fax: (859) 495-0803
chris@cwiestlaw.com
Attorneys for Plaintiffs
39
CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2023, a true and correct copy of the foregoing was served
by CM/ECF on all counsel or parties of record.
Dated this 21st day of July, 2023
/s/ John H. Bryan

John H. Bryan, Attorney
West Virginia Bar No. 102159
411 Main Street
P.O. Box 366
Union, West Virginia 24983
Tel: (304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com
40

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Case 5:23-cv-00158-JPB Document 61 Filed 07/23/23 Page 1 of 41 PageID #: 697

UNITED STATES DISTRICT COURT

WEST VIRGINIA PARENTS FOR : Civil Action No.: 5:23-cv-00158-JPB

DR. MATTHEW CHRISTIANSEN,

PLAINTIFFS’ MEMORANDUM IN RESPONSE TO DEFENDANT’S CROSS MOTION

Virginia’s Attorney General agrees. See ECF 28.

part of everyday life in West Virginia.

FACTUAL AND PROCEDURAL BACKGROUND

in the record, including depositions, documents, electronically stored information, affidavits or

v. Morgan State Univ., 524 F. App’x. 58, 60 (4th Cir. 2013).

Further, it is well established that unsworn, unauthenticated documents cannot be

Supp. 2d 705, 715 (E.D. Va. 2010) (quoting FRE 901).

Plaintiffs object to Defendant’s Exhibits B 1 (self-serving op-ed) 2, C and D (regarding

measles, addressed infra), I (regarding herd immunity in general) 3, and G, H, J, L, M, N, O, P, Q,

under FRE 901.

adjudication on Plaintiff’s pending motion. 6

exemption requests. See ECF 53 at 23-25 (Defendant describing a contraindication in broad

particular individual”). Government officials exercise individualized discretion as to whether to

reviews the request.

criteria, including subjective contraindications such as “Encephalopathy (e.g., coma, decreased

days of administration of previous dose of DTP or DTaP” or “Family history of altered

immunocompetence,” and notes that “Events or conditions listed as precautions should be

by-case basis.” (Emphasis added.).

West Virginia allows children to be educated in unlimited numbers without vaccination

and allows school campus visitors without proof of vaccination.

congregate in every activity imaginable without proof of vaccination.

III. Measles and Measles Vaccine

relevant for doing so in a school setting. See Siri ¶¶ 3-15.

measles, attended a 20,000-person gathering in Kentucky – a state with a check-the-box religious

cause “seizure,” “deafness,” “long-term seizures, coma, or lowered consciousness,” “brain

injection of the MMR vaccine. (Siri ¶¶ 17-20).

outlandish and unsupportable claims. (Siri ¶¶ 3-15, 17-21, 30).

their beliefs with Defendant’s beliefs in “miracles.”

A. Pullman is Inapplicable Because the CVL is Unambiguous

religious exemption nor has he indicated a change of course in light of EPRA.

B. Pullman is Inapplicable Because the Challenged Statute is Clearly

Pullman abstention is also improper where a law is clearly unconstitutional. See

plainly violates the First Amendment, as discussed infra.

C. It Would Be Improper to Create a State Court Exhaustion Requirement For

freedoms. See Elrod v. Burns, 427 U.S. 347, 373 (1976).

exhaustion requirement for any First Amendment claim in West Virginia.

V. Plaintiffs Have Satisfied Ex Parte Young

laboratory evidence is received and the records are amended.”).

lack of religious exemption on his website. 11

officials” to enjoin unconstitutional action are permitted under Ex Parte Young).

Baliles, 868 F.2d 653, 662 (4th Cir. 1989).

families to pursue medical exemptions.

Defendant too-cleverly-by-half argues that he is not statutorily empowered to rewrite

remedy that will fully correct past wrongs”).

the requested relief.” Id. So too here.

A. Defendant Cannot Demonstrate the Challenged Statute is Generally

religious exercise violates the general applicability test.

that the government had made an unconstitutional “value judgment”).

prohibited in West Virginia and would not be considered. ECF 1 ¶ 100. 12

Defendant is wrong for two reasons.

considers statutory criteria”). What makes something an individualized exemption scheme, as

grant … exemptions to the compulsory immunization requirements of this section…”) (emphasis

circumstances underlying each application,” it must provide a compelling reason to exclude