Appeals Court rejects religious liberty challenge to mask requirement for grades K-5 in religious schools

by | Aug 24, 2021

The 6th U.S. Circuit Court of Appeals declined to issue an injunction halting a mask mandate for schoolchildren grades K-5 attending religious schools. The court rejected a Free Exercise challenge brought by Resurrection School, a Catholic elementary school in Lansing, Michigan, and two parents of children attending the school. The court reasoned in a 2-1 ruling that, because the mask order applies to both secular and religious schools alike, the order is not discriminatory toward religion and thus not subject to the high standard of strict scrutiny.

The plaintiffs relied on a 2020 decision (Monclova Christian Academy) in which a 6th Circuit panel sided with religious schools and disallowed enforcement of a county’s order prohibiting in-person learning, citing the fact that the county allowed certain secular businesses to remain open. But the Monclova Court got it wrong, according to this latest opinion, and it should not have looked to secular businesses for comparison. 

Here is an excerpt from the opinion:

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K–5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Importantly, the appeals court rejected the plaintiffs’ argument that the U.S. Supreme Court’s recent decision in Fulton v. City of Philadelphia, along with the ministerial exception doctrine most recently articulated in Our Lady of Guadalupe School, broadly insulate religious schools from the reach of government regulation. Fulton, the appeals court explained, was a narrow decision focused on the fact that Philadelphia’s Department of Human Services maintained unfettered discretion to provide exemptions from nondiscrimination requirements. No similar discretion to exempt schools or parents from the mask mandate is present here.

As for the ministerial exception, the court found it also does not support the plaintiffs’ broad exemption from laws that are neutral toward religion:

Plaintiffs’ reliance on Our Lady of Guadalupe School is misplaced. In Our Lady of Guadalupe School, the Supreme Court concluded that a form of immunity from employment-discrimination claims brought by certain employees, the ministerial exception, extended to two teachers who taught religion and participated in religious activities. The Supreme Court, however, emphasized that religious institutions’ ability to decide “matters of church government” and “faith and doctrine,” “does not mean that religious institutions enjoy a general immunity from secular laws.” MDHHS Orders requiring all persons ages five and older to wear a mask in public—including in the classroom—is not comparable to infringing on the school’s authority to select their ministers and religious educators. Thus, Our Lady of Guadalupe School provides no help to Plaintiffs.

The dissenting judge would have returned the mask mandate to the trial court with instructions to reconsider in light of the U.S. Supreme Court’s ruling in Tandon v. NewsomThere, the Court held that home Bible studies are exempt from COVID-related gathering restrictions.