Legal Update

LEGAL UPDATE By: Regina Koho

Attorney, Tennessee Valley Authority Office of General Counsel

DO MASK MANDATES INFRINGE ON RELIGIOUS FREEDOM? THE SIXTH CIRCUIT SAYS NO

Both here and throughout the country, the scope of the government’s power to enact measures to deal with the COVID-19 pandemic has been, and continues to be, a source of consternation and disagreement.1 Courts have often been drawn into the fray,2 and the Sixth Circuit is no exception.3 In August, the court issued its most recent ruling involving COVID-19 restrictions. In Resurrection School v. Hertel4 the court addressed a constitutional challenge to a mask requirement issued by the Michigan Department of Health and Human Services (“MDHHS”), which was brought by a Catholic elementary school and two parents with children enrolled at the school.5

MDHHS’s order outlining the mask requirement was initially enacted in October 20206 and mandated “that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K–12 schools.”7 The order was subject to certain exceptions, such as for individuals who could not medically tolerate a mask or were “engaging in a religious service.”8

Plaintiffs challenged the mask requirement in district court, alleging that it violated (in pertinent part) their right to free exercise under the First Amendment.9 The school contended that the requirement violated its “sincerely held religious beliefs because it interfere[d] with . . . [its] religiously oriented disciplinary policies and prevent[ed] younger students from partaking fully in a Catholic education.”10 Likewise, the parents of the children attending the school contended that masks “distract[ed] from their religious education” and that the requirement “conflict[ed] with the[ir] right [as a parent] to choose a school for them which corresponds to their own convictions.”11 The district court denied plaintiffs’ motion for a preliminary injunction, concluding that they were unlikely to succeed on the merits of their free-exercise challenge.12

Plaintiffs appealed the district court’s ruling. In the interim, MDHHS rescinded most of its COVID-19 emergency orders, including the challenged mask requirement, “because of the reduction in COVID-19 test positivity rates, case rates, hospitalizations, and deaths, [and] the availability of COVID-19 vaccines.”13 Based on the rescission of the mask requirement, defendants asked the Sixth Circuit to dismiss the appeal as moot.14

As a threshold matter, the Sixth Circuit determined that plaintiffs’ challenge was not moot. Noting that MDHHS acknowledged in its order rescinding the mask requirement that COVID-19 “continues to constitute an epidemic in Michigan” and that “[b]oth the CDC’s and MDHHS’s guidance recommend that students in grades K–12 wear masks in the classroom,” the court concluded that it was entirely possible MDHHS might reinstate the mask requirement should the COVID-19 situation worsen.15

On the merits of the claim, the court engaged in a robust discussion16 as to whether the mask requirement was subject to “strict scrutiny”—which would require a finding that the order was narrowly tailored to serve a compelling state interest17—or rational basis review— which would merely require the court to find “‘that the regulation bear[s] some rational relation to a legitimate state interest.’”18 Distinguishing much of the case law evaluating religious-based challenges to COVID-19 restrictions,19 the court determined that rational basis review was appropriate because the order was “not so riddled with exceptions for comparable secular activities as to render the mask requirement not neutral and of general applicability.”20 Because defendants “had a legitimate state interest in controlling the spread of COVID-19 in Michigan” and presented “more than ample evidence that requiring masks in the school setting minimizes the spread of COVID-19,” the court found that the mask requirement easily passed constitutional muster.21

With schools back in session and COVID-19 cases throughout the country steadily increasing,22 we have likely not seen the last of mask requirements and similar attempts to curb the spread of the virus. As a result, the courts in this circuit are also likely to see challenges to the attempts at the federal, state, and local levels to combat the effects of a pandemic that shows no signs of slowing down.

1 See, e.g., Cory Turner, Education Dept. Announces Civil Rights Investigations Into 5 States’ Mask Mandate Bans, NPR (Aug. 30, 2021, 8:33 PM), https://www.npr. org/sections/back-to-school-live-updates/2021/08/30/1032520335/educationdepartment-civil-rights-investigations-mask-mandates; Tyler Whetston, Knox County Commission strips board of health of its pandemic powers, Knoxville News Sentinel (Mar. 29, 2021, 10:29 PM), https://www.knoxnews.com/ story/news/politics/2021/03/29/knox-county-board-stripped-of-pandemicpowers/69973490021. 2 See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (holding that plaintiffs were likely to succeed on the merits of their free-exercise challenge to a California order limiting all gatherings in homes, religious and non-religious, to three households). 3 See, e.g., Commonwealth v. Beshear, 981 F.3d 505, 511 (6th Cir. 2020) (concluding that plaintiffs were unlikely to succeed on the merits of their constitutional challenge to a Kentucky order temporarily prohibiting in-person instruction at public and private K–12 schools). 4 No. 20-2256, 2021 WL 3721475 (6th Cir. Aug. 23, 2021). 5 Resurrection Sch., 2021 WL 3721475, at *5. 6 Id. at *2. 7 Id. at *1. 8 Id. at *3. 9 Plaintiffs also asserted equal protection, substantive due process, freedom of speech, and freedom of association claims. See id. at *5. 10 Id. 11 Id. (internal quotation marks omitted). 12 Resurrection Sch. v. Gordon, 507 F. Supp. 3d 897, 900–01 (W.D. Mich. 2020). 13 Resurrection Sch., 2021 WL 3721475, at *4. 14 Id. at *6. 15 Id. at *10 (internal quotation marks omitted). 16 See id. at *12–14. 17 Id. at *12. 18 Id. at *15 (quoting Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002)). 19 See id. at *12–14. 20 Id. at *14. 21 The court likewise found that plaintiffs were unlikely to succeed on their equal protection and substantive due process claims. See id. at *16–17. 22 See, e.g., Isabel Lohman, Knox County Schools reports COVID-19 case counts that shatter previous record, Knoxville News Sentinel (Aug. 25, 2021, 7:20 PM), https:// www.knoxnews.com/story/news/education/2021/08/25/knox-county-schoolsreports-record-number-covid-19-cases/5589293001/.