Constitutional Law

Mask mandate didn't violate Catholic school's religious freedom rights, 6th Circuit says

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A federal appeals court on Monday upheld a federal judge’s refusal to block a mask mandate in a challenge brought by a Catholic elementary school in Lansing, Michigan.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled against the Resurrection School and two parents who challenged the mandate as a violation of their religious freedom.

How Appealing links to the Aug. 23 decision.

The school’s lawsuit had contended that masks hide faces “made in God’s image and likeness.”

“Jesus made seeing the other a priority,” the suit contended.

The Washington Post and Reuters covered the lawsuit allegations in stories published last month.

The order by the Michigan Department of Health and Human Services, which has since been lifted, required all people over age 5 to wear a face mask in public. Exceptions were made for eating and drinking, swimming, visiting a doctor, socially distanced speeches, religious services, medical intolerance to masks and outdoor exercise.

The school and the parents argued that the mask order violated their rights to free exercise, equal protection and due process.

The 6th Circuit said the mask challenge was not moot because the order could be reimposed, and the controversy is capable of repetition.

The appeals court then determined that the order was neutral and of general applicability because it applied to all elementary schools. As a result, the appeals court said, the order need only satisfy a rational basis test, which requires the mask order to be rationally related to a legitimate government interest. The more rigorous test rejected by the court would have required the government to show a compelling governmental interest in justifying the order.

Under a rational basis test, the school’s the constitutional claims fail, the 6th Circuit said.

“Here, defendants had a legitimate state interest in controlling the spread of COVID-19 in Michigan,” the appeals court said in an opinion by Judge Karen Nelson Moore.

Moore noted a 2020 decision by the 6th Circuit, Monclova Christian Academy v. Toledo-Lucas County Health Department, which seemed to compel a different result in the Resurrection School case. The Monclova decision blocked an order banning in-person education at secular and religious schools.

In Monclova, the appeals court said that, in determining whether an order is generally applicable, the comparator is not religious and secular schools. Instead, the 6th Circuit said, the court should compare the in-person education ban with secular activities allowed to remain open, such as gyms, tanning salons, office buildings and the Hollywood Casino. That comparison led the Monclova appeals court to apply strict scrutiny to the ban and find it unconstitutional.

Moore said Monclova misinterpreted 6th Circuit precedent.

“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,” Moore wrote. “Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.”

Even when the school mask mandate is compared to the treatment of secular activities, the order is “not so riddled with secular exceptions as to fail to be neutral and generally applicable,” Moore said.

Many of the exceptions are for activities inherently incompatible with wearing a mask, Moore said. And almost all the exceptions are for activities shorter in duration and carrying lower risk of coronavirus transmission. In addition, exceptions such as those for eating and swimming applied to school children, as well.

Moore’s opinion was joined in full by Judge Bernice Bouie Donald and joined in part by Senior Judge Eugene Siler Jr.

Siler’s partial concurrence agreed that the issue wasn’t moot. But he said he would remand the case for a determination whether the mask mandate was justified under Monclova, which was issued after the federal judge ruled in the Resurrection School case.

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