Religious Liberty Does Not End Where Ordinary Life Begins

Why We’re Asking the Supreme Court to Hear Perry v. Marteney

In West Virginia, parents may homeschool an unvaccinated child. If they enroll that same child in the West Virginia Virtual Academy, a public school whose students learn online from home, the State requires the child to be vaccinated.

The Perrys’ faith forbids them to vaccinate their daughter, and they challenged that rule in Perry v. Marteney. Today, Lex Rex Institute attorney Alexander Haberbush and Dr. John Eastman filed an amicus brief for the Claremont Institute’s Center for Constitutional Jurisprudence. The brief asks the Supreme Court to review the Fourth Circuit’s decision against the family.

The Fourth Circuit accepted that the Perrys’ objection is religious. Even so, it refused to compare the Virtual Academy with homeschooling, learning pods, or microschools, because the Perrys had not chosen the Virtual Academy for religious reasons. A sincere religious objection to the vaccine wasn’t enough. In the court’s view, the family also needed a religious reason for choosing the school.

The Founders would not have recognized that rule. The Constitution lets officeholders affirm their oath instead of swearing it, an accommodation for Quakers and others whose faith forbade oaths. Nobody had to show he sought office for religious reasons to use it. The Framers expected people to exercise their consciences in ordinary civic life, including in pursuits that had nothing to do with religion.

Our brief asks the Court to apply the same principle here. West Virginia may have legitimate public-health concerns, but it has to justify each distinction by the actual risk a given educational setting poses. Calling one arrangement a “public school” and another a “learning pod” doesn’t do that. The brief also argues that parents’ right to direct their children’s religious upbringing reaches how children are taught to live out their faith, which is broader than the content of a lesson plan.

This case matters well beyond one family. Most conflicts of conscience arise in everyday decisions about school, work, and family, and few of those decisions were made for religious reasons. If religious liberty protects a believer only when every earlier choice was religiously motivated, it won’t protect much of anyone.

Read the amicus brief here.