In Perry v. Marteney, (4th Cir., April 8, 2026), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that West Virginia's law that requires children attending school in the state to be vaccinated against a number of infectious diseases may be constitutionally applied to a student attending the state's online public school over the religious objections of the student's parents. West Virginia allows medical exemptions from the vaccination requirement but does not permit religious exemptions. The court rejected the parents' claim that the compulsory vaccination law is not "generally applicable", and thus must satisfy the strict scrutiny test, and also suggested that it does satisfy strict scrutiny. The majority said in part:
... [A] state’s interest in vaccinating its citizens and protecting its school children has long been recognized as of the utmost importance.... 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....
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.”... The law recognizes only one kind of exemption—medical exemptions—and clearly articulates the circumstances in which state officials can grant them....
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.... [T]he 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. But a law does not lack general applicability merely because it makes classifications.... Classifications only pose a constitutional concern if they treat “comparable secular activity more favorably than religious exercise.”
... [T]he 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....
The burden imposed by West Virginia’s compulsory vaccination law is not remotely “of the same character” as those imposed in Yoder and Mahmoud. ... 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.
Judge Neimeyer dissented, saying in part:
The injunction entered here [by the district court] 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....
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....
