Sixth Circuit Upholds School Mask Mandate Against Free Exercise Clause Challenge

From Resurrection School v. Hertel, decided yesterday by Judge Karen Nelson Moore joined by Judge Bernice Donald:

[Plaintiffs assert] that MDHHS's mask requirement for students in grades K–5 violates Resurrection School's sincerely held religious beliefs because it interferes with the school's religiously oriented disciplinary policies and prevents younger students from partaking fully in a Catholic education. The declarations submitted by the Plaintiff parents assert that their children find masks uncomfortable and distracting from their religious education, and that the mask requirement conflicts with "the right [as a parent] to choose a school for them which corresponds to their own convictions." {In their initial Complaint, Plaintiffs also argued that "[i]n accordance with the teachings of the Catholic faith, Resurrection School believes that every human has dignity and is made in God's image and likeness. Unfortunately, a mask shields our humanity. And because God created us in His image, we are masking that image."}

Plaintiffs argue that MDHHS's Orders violate their sincerely held religious beliefs because they require students in grades K–5 at religious schools to wear a face covering. We do not question the sincerity of Plaintiffs' beliefs that wearing a mask in the classroom violates their Catholic faith. {Defendants Vail and Siemon contend in their brief that "Appellants do not cite to any sources to support their position that the Catholic faith or Catholic theology is in any way opposed to the use of prophylactic masks during a global pandemic," or "provide any examples of ways in which masks interfere with or burden their religious beliefs." Plaintiffs' objections to masks admittedly are confusing and at times, digress into secular, rather than religious concerns. Nevertheless, a plaintiff's "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."} …

In the present case, the district court … correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability….

In Tandon v. Newsom, the Supreme Court concluded that the 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. "[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." In concluding that the restriction was not neutral and of general applicability, the Court noted that "California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time."

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. {Perhaps the only other comparable secular activity, childcare organizations, were subject to the same requirement that children ages five years and older wear a mask.} Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the MDHHS orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. The exceptions to the MDHHS Orders were narrow and discrete.

First, many of the exceptions, such as medical intolerance to mask use, eating and drinking, swimming, or receiving a medical treatment during which a mask cannot be worn, are "inherently incompatible with" wearing a mask. Contact sports where participants cannot safely remain masked must adhere to a testing protocol. Here, Plaintiffs seek to exempt children in grades K–5 at religious schools from having to wear a mask during an activity in which wearing a mask is possible, albeit undesirable for Plaintiffs.

Second, almost all exceptions to the MDHHS Orders—aside from children younger than five years old and those medically unable to wear a mask—are short in duration and lower risk (medical and personal care services requiring removal of a mask; voting). Some of the exceptions have a stringent social distancing requirement (public speaking with twelve feet of distance) or are outdoors where the risk of COVID-19 transmission is reduced (outdoor, physically distanced exercise).

Third, The MDHHS Orders also exempt activities that are necessary to fulfill "equally important obligations to its citizens' health and safety" (firefighters, police officers, and emergency medical personnel "actively engaged in a public safety role … where wearing a face mask would seriously interfere in the performance of their public safety responsibilities," By contrast, as Defendants aptly describe it, "plaintiffs' activity comprises all-day, indoor mixing of the same groups of people, five days a week for months on end." Thus, unlike in … Monclova Christian Academy v. Toledo-Lucas County Health Department (6th Cir. 2020), where the challenged order exempted an array of secular activities that the panel viewed as posing a greater risk than in-person instruction, the exceptions to the MDHHS Orders are narrow and largely limited to activities of lesser risk than in-person instruction.

Finally, all exceptions to the MDHHS Orders were available to Plaintiffs if they had chosen to engage in that activity. Plaintiffs were able to remove their face coverings to eat lunch at school, swim during physical education class, participate in Mass at school, engage in distanced public speaking on a religious topic, or exercise outdoors while physically distanced during recess. Under the MDHHS orders, persons medically unable to wear a face covering, such as Smith's son, could go without a face covering at school. Because the MDHHS Orders are not so riddled with exceptions for comparable secular activities as to render the mask requirement not neutral and of general applicability, we review the MDHHS Orders for whether the state has a rational basis….

Plaintiffs cite the Supreme Court's recent decision in Our Lady of Guadalupe School v. Morrissey-Berru (2020), for the principle that "[t]he First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" … 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….

Plaintiffs also argue that we should apply strict scrutiny to MDHHS's Orders because the orders violate both their free-exercise rights and their rights as parents to direct the education of their children. Pls.' Br. at 32. This hybrid-rights theory stems from dicta in Employment Division v. Smith (1990) explaining that a plaintiff may establish a violation of the Free Exercise Clause by showing that a neutral and generally applicable law violates "the Free Exercise Clause in conjunction with other constitutional protections."

Although some circuits have recognized hybrid-rights claims, we have consistently declined to recognize hybrid-rights claims. For instance, in Kissinger v. Board of Trustees of Ohio State University, College of Veterinary Medicine (6th Cir. 1993), we considered the merits of a veterinary student's claim that her college's policy of requiring students to dissect animals violated the Free Exercise Clause and other constitutional provisions. We declined to apply strict scrutiny to her hybrid claim, reasoning that "[w]e do not see how a state regulation would violate the Free Exercise Clause if it implicates other constitutional rights but would not violate the [F]ree Exercise Clause if it did not implicate other constitutional rights." Simply put, this outcome would be "completely illogical."

"[T]herefore, at least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated," we explained that we would "not use a stricter legal standard than that used in Smith to evaluate generally applicable, exceptionless state regulations under the Free Exercise Clause." Since then, we have consistently declined to recognize a hybrid-rights theory….

Applying rational-basis review, we hold that the MDHHS Orders are rationally related to a legitimate government interest. To satisfy rational-basis review, Defendants must show "only that the regulation bear[s] some rational relation to a legitimate state interest." Here, Defendants had a legitimate state interest in controlling the spread of COVID-19 in Michigan…. Further, Defendants cite more than ample evidence that requiring masks in the school setting minimizes the spread of COVID-19. Although Plaintiffs question the effectiveness of masks, even they admit that "masks serve a purpose when students cannot socially distance and do not object to (and, indeed, enforce) mask wearing in the hallways and common areas of the school."

We conclude that the MDHHS Orders do not violate the Free Exercise Clause because the MDHHS Orders are neutral and of general applicability and satisfy rational-basis review.

Sounds correct to me.

Judge Eugene Siler dissented, arguing that the court should have remanded to the district court to consider Tandon v. Newsom and Monclova Christian Academy v. Toledo-Lucas County Health Department (6th Cir. 2020), rather than having the panel itself consider those cases. Thanks to Howard Bashman (How Appealing) for the pointer.