The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning, the U.S. Court of Appeals for the Sixth Circuit granted a petition for rehearing en banc in Resurrection School v. Hertel, a challenge to a Michigan requirement that those 5-years-old or more wear masks in public indoor settings, including schools. A Catholic elementary school and parents with children at the school challenged the requirement on religious liberty grounds, but were denied a preliminary injunction.
The initial panel to hear the case concluded that the challenge was not moot, even though Michigan had rescinded the masking requirement, and rejected the challengers' claims on the merits. Judge Moore wrote for the court, joined by Judge Donald.
Judge Siler agreed with the majority on the question of mootness, but not on the merits. His brief separate opinion read:
I concur with the majority's conclusions on mootness, in part A of the opinion. However, I dissent on the merits on the primary issue, that is, whether the district court correctly denied the petition for the granting of a preliminary injunction.
I do not quarrel with the fact that the district court had the authority to deny the motion for preliminary injunction under the facts of this case, but it did not have the benefit of the more recent case Tandon v. Newsom, 141 S. Ct. 1294 (2021). It also did not have the benefit of the decision in Monclova Christian Academy v. Toledo-Lucas County Health Department, 984 F.3d 477 (6th Cir. 2020), which was handed down later in the same month that the district court made its ruling. Monclova held that in cases such as this, the court should look at all comparators, not just the public schools. Id. at 480. The district court here compared the restrictions in this matter with those followed in Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020). Yet Monclova is more consistent with Tandon than Beshear. The court did not consider other comparable secular activities beyond the public schools. I feel it is a mistake for this court to uphold the denial of the preliminary injunction on the interpretation from Tandon without giving the district court an opportunity to consider it in light of all the evidence before it. Therefore, I would remand to the district court to review the case in light of the decision in Tandon.
As Judge Siler's opinion indicates, there is some tension within the Sixth Circuit's caselaw on this question. Taking this case en banc will provide an opportunity for the court to sort out the doctrine within the circuit, and more closely align Sixth Circuit caselaw with that of the Supreme Court. I also suspect the grant indicates a majority of the court is unconvinced the original panel got the question right.