Petition for Writ of Certiorari — Resurrection School, et al., Petitioners v. Elizabeth Hertel, Director, Michigan Department of Health and Human Services, et al.
Supreme Court briefAug 23, 2022
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Sixth Circuit
(May 25, 2022) . . . . . . . . . . . . . . . App. 1
Appendix B Opinion in the United States Court of
Appeals for the Sixth Circuit
(August 23, 2021) . . . . . . . . . . . . App. 66
Appendix C Order Denying Motion for Preliminary
Injunction in the United States
District Court Western District of
Michigan Southern Division
(December 16, 2020) . . . . . . . . . App. 115
App. 1
APPENDIX A
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0114p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 20-2256
[Filed: May 25, 2022]
_____________________________________________
RESURRECTION SCHOOL; CHRISTOPHER
)
MIANECKI, individually and as next friend on
)
behalf of his minor children C.M., Z.M.,
)
and N.M.; STEPHANIE SMITH, individually and )
as next friend on behalf of her minor child F.S., )
Plaintiffs-Appellants,
)
)
v.
)
)
ELIZABETH HERTEL, in her official capacity
)
as the Director of the Michigan Department
)
of Health and Human Services; DANA NESSEL, )
in her official capacity as Attorney General
)
of the State of Michigan; LINDA VAIL, in her
)
official capacity as the Health Officer
)
of Ingham County; CAROL A. SIEMON, in
)
App. 2
her official capacity as the Ingham County
)
Prosecuting Attorney,
)
Defendants-Appellees.
)
_____________________________________________)
On Petition for Rehearing En Banc.
United States District Court for the Western District
of Michigan at Grand Rapids;
No. 1:20-cv-01016—Paul Lewis Maloney, District
Judge.
Argued En Banc: March 9, 2022
Decided and Filed: May 25, 2022
Before: SUTTON, Chief Judge; SILER, MOORE,
COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE,
WHITE, STRANCH, DONALD, THAPAR, BUSH,
LARSEN, NALBANDIAN, READLER, and
MURPHY, Circuit Judges.*
_________________
COUNSEL
ARGUED EN BANC: Erin Elizabeth Mersino, GREAT
LAKES JUSTICE CENTER, Lansing, Michigan,
Robert J. Muise, AMERICAN FREEDOM LAW
CENTER, Ann Arbor, Michigan, for Appellants. Daniel
J. Ping, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for State of Michigan
Appellees. John J. Bursch, ALLIANCE DEFENDING
FREEDOM, Washington, D.C., for Amicus Curiae. ON
*
Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court,
Judge Siler, a senior judge of the court who sat on the original
panel in this case, participated in this decision.
App. 3
SUPPLEMENTAL BRIEF: Erin Elizabeth Mersino,
GREAT LAKES JUSTICE CENTER, Lansing,
Michigan, Robert J. Muise, AMERICAN FREEDOM
LAW CENTER, Ann Arbor, Michigan, for Appellants.
Daniel J. Ping, Ann M. Sherman, Jennifer Rosa,
OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for State of Michigan
Appellees. Bonnie G. Toskey, Sarah K. Osburn, COHL,
STOKER & TOSKEY, P.C., Lansing, Michigan, for
Appellees Linda Vail and Carol Siemon. ON AMICUS
BRIEF: John J. Bursch, Cody S. Barnett, ALLIANCE
DEFENDING FREEDOM, Washington, D.C., Matthew
F. Kuhn, Brett R. Nolan, OFFICE OF THE
KENTUCKY ATTORNEY GENERAL, Frankfort,
Kentucky, for Amici Curiae.
KETHLEDGE, J., delivered the opinion of the court
in which SUTTON, C.J., and MOORE, COLE, CLAY,
GIBBONS, WHITE, STRANCH, DONALD, THAPAR,
LARSEN, NALBANDIAN, and MURPHY, JJ., joined,
and READLER, J., joined in Parts I and II.A. MOORE,
J. (pg. 8), delivered a separate concurring opinion in
which WHITE, STRANCH, and DONALD, JJ., joined.
READLER, J. (pp. 9–11), delivered a separate opinion
concurring in part and dissenting in part. BUSH, J.
(pp. 12–43), delivered a separate dissenting opinion in
which SILER and GRIFFIN, JJ., joined.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. In this case, a private
religious school and two parents of students who attend
private religious schools seek a preliminary injunction
App. 4
as to a statewide mask mandate that the State itself
repealed almost a year ago. We hold that both this
interlocutory appeal and the claim itself are now moot.
I.
In April 2020, Michigan Governor Gretchen
Whitmer imposed a statewide mask mandate in
response to the COVID-19 pandemic. In September
2020, she extended the mandate to require children in
elementary schools to wear masks in the classroom.
R.1-4. On October 2, 2020, the Michigan Supreme
Court held that both of the Governor’s orders violated
the Michigan Constitution, on the ground that they
represented the “exercise of the legislative power by the
executive branch.” In re Certified Questions, 958
N.W.2d 1, 24, 31 n.25 (Mich. 2020).
Yet a week later the Michigan Department of
Health and Human Services imposed a mandate of its
own, which likewise required masks in public settings,
including classrooms in public and private schools.
R.1-1. The order included a dozen exceptions, namely
for “individuals who:”
(a)
(b)
(c)
(d)
(e)
Except as otherwise provided . . . are
younger than 5 years old . . . ;
Cannot medically tolerate a face covering;
Are eating or drinking while seated at a
food service establishment;
Are exercising outdoors and able to
consistently maintain six feet of distance
from others;
Are swimming;
App. 5
(f)
(g)
(h)
(i)
(j)
(k)
(l)
Are receiving a service for which
temporary removal of the face covering is
necessary;
Are entering a business or are receiving a
service and are asked to temporarily
remove a face covering for identification
purposes;
Are communicating with someone who is
deaf, deafblind, or hard of hearing and
whose ability to see the mouth is essential
to communication;
Are actively engaged in a public safety
role, including but not limited to law
enforcement, firefighters, or emergency
medical personnel, and where wearing a
face covering would seriously interfere in
the performance of their public safety
responsibilities;
Are at a polling place for purposes of
voting in an election;
Are engaging in a religious service;
Are giving a speech for broadcast or to an
audience, provided that the audience is at
least six feet away from the speaker.
That same month, the plaintiffs brought this suit,
claiming that the State’s mask mandate violated their
right to the free exercise of religion under the First
(and Fourteenth) Amendment to the U.S. Constitution.
R.1 at 22–23. The plaintiffs also filed a motion to enjoin
the mask mandate preliminarily, which the district
court denied in December 2020. The plaintiffs then
brought this appeal, asking us to enjoin the mandate
while their case is litigated in the district court.
App. 6
Meanwhile, between November 2020 and May 2021,
the Department issued no fewer than twelve different
orders revising its mask mandate—sometimes
eliminating an exception (such as the one for polling
places), other times tightening an exception (such as by
limiting the exception for “service[s] for which removal
of the face mask is necessary” to only medical services),
and sometimes revising an earlier revision (such as a
change to allow people to remove masks for “personal
care services” like tanning and piercing). By the spring
of 2021, however, the relevant public-health conditions
had changed. By then the U.S. Food and Drug
Administration had authorized three COVID-19
vaccines; better therapeutics had become available; and
case counts, hospitalizations, and deaths had fallen in
Michigan. The Department cited these developments—
along with the “warmer weather”—and rescinded the
mask mandate (and various other pandemic-related
orders) on June 17, 2021. Doc. 34-2. The defendants
then moved to dismiss this appeal as moot.
II.
Any number of precepts about the federal judicial
power (indeed, one could argue, nearly allof them) trace
back to Chief Justice John Marshall’s pronouncement
that the “province of the court is, solely, to decide on
the rights of individuals[.]” Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 170 (1803) (emphasis added). The
precept that follows here is that, under Article III, the
“federal courts are without power to decide questions
that cannot affect the rights of litigants in the case
before them.” DeFunis v. Odegaard, 416 U.S. 312, 316
(1974) (internal quotation marks omitted). “Thus, when
App. 7
a case at first presents a question concretely affecting
the rights of the parties, but—as a result of events
during the pendency of the litigation—the court’s
decision would lack any practical effect, the case is
moot.” Ohio v. EPA (“Ohio”), 969 F.3d 306, 308 (6th
Cir. 2020).
A.
In deciding whether a decision in this appeal would
have any “practical effect,” we must be mindful of “the
distinction between mootness as to a preliminaryinjunction appeal and mootness as to the case as a
whole.” Ohio, 969 F.3d at 309. “The purpose of a
preliminary injunction, unlike a permanent one, is to
prevent any violation of the plaintiff’s rights before the
district court enters a final judgment.” Id. Whether a
preliminary-injunction appeal is moot, therefore,
depends on whether our decision would have any
“practical effect” during that window of time.
The plaintiffs face strong headwinds on that point,
given that the State has already rescinded the mandate
that they ask us “preliminarily” to enjoin. Yet the
plaintiffs argue that two exceptions to the mootness
doctrine apply here.
Voluntary Cessation. The first exception is that a
defendant’s “voluntary cessation” of challenged conduct
moots a case only if there clearly is “no reasonable
expectation that the alleged violation will recur.”
Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th
Cir. 2019) (cleaned up). Here, forthe challenged conduct
to recur, the State need not reimpose the “selfsame”
mandate that it rescinded in June 2021. Ne. Fla.
App. 8
Chapter of Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 662 (1993) (emphasis
omitted). But the State would need to impose a
mandate “similar” enough to the old mandate to
present substantially the same legal controversy as the
one presented by the plaintiffs’ complaint. See id. at
662 n.3.
For several reasons, however, we see no reasonable
possibility of that happening here. First, the State
rescinded the mask mandate not in response to this
lawsuit, but eight months later, along with several
other pandemic-related orders. In doing so the State
cited high vaccination rates, low case counts, new
treatment options, and warmer weather. This case is
therefore unlike Speech First, where the “timing” of the
University of Michigan’s cessation of the challenged
conduct “raise[d] suspicions that its cessation [was] not
genuine.” 939 F.3d at 769. And the defendants’ own
political accountability diminishes any chance that
they would reimpose the same mandate after this
litigation ends.
Second, the relevant circumstances have changed
dramatically since the Department imposed its
statewide mask mandate in October 2020. At that time,
nobody was vaccinated and treatments were less
effective than they are now. The relevant
circumstances now, in contrast, are largely the same
circumstances that prompted the State to rescind the
mandate.
Third, any future masking order likely would not
present substantially the same legal controversy as the
one originally presented here. Michigan imposed the
App. 9
first version of the mandate at issue here before the
U.S. Supreme Court had blocked any COVID-19 orders
on free-exercise grounds. The Supreme Court and other
courts have since blocked any number of them, thereby
providing concrete examples of mandates and
restrictions that violate the Free Exercise Clause. See,
e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021);
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.
63, 67–68 (2020). The Court has also recently told us
that “government regulations” are subject to strict
scrutiny under the Clause “whenever they treat any
comparable secular activity more favorably than
religious exercise”; and that “whether two activities are
comparable for purposes of the Free Exercise Clause
must be judged against the asserted government
interest that justifies the regulation at issue.” Tandon,
141 S. Ct. at 1296. The plaintiffs’ claim here is thus
based primarily on the particular exceptions in the
State’s now-rescinded mandate—the idea being that, if
those secular actors deserve relief, then the parents
and children in this lawsuit do as well. See, e.g., id. at
1297; Roman Cath. Diocese, 141 S. Ct. at 67–68. This
dispute is therefore moot unless there is a decent
chance that the defendant officials will not only impose
a new mask mandate, but also roughly stick to the
exceptions in the old one. And that prospect is
exceedingly remote given all that has happened in the
year or so since the State rescinded its mandate.
The plaintiffs emphasize that other government
entities, like Ingham County, have imposed mask
mandates more recently. But Ingham County has since
rescinded its mandate too. And the question here is
whether Michigan will reimpose the mask mandate on
App. 10
the School, not whether some other entity will do so.
See Chirco v. Gateway Oaks, L.L.C., 384 F.3d 307,
309–10, 310 n.1 (6th Cir. 2004).
During oral argument for this appeal, an amicus
supporting plaintiffs offered another argument as to
why this claim remains live—namely, that
Resurrection School’s principal admitted to violating
the mask mandate and thus potentially could be
subject to prosecution in the future. But arguments in
support of justiciability can be forfeited. See California
v. Texas, 141 S. Ct. 2104, 2116 (2021); Glennborough
Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410,
414 (6th Cir. 2021). And this argument was forfeited
because it was raised for the first time at oral
argument. See United States v. Huntington Nat’l Bank,
574 F.3d 329, 331 (6th Cir. 2009). The argument is also
meritless: the school’s principal is not a party here, and
thus is not among the “individuals” whose rights we
must adjudicate. Marbury, 5 U.S. at 170. Nor is there
any credible threat of future prosecution. See Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 165 (2014). If
the principal or anyone else is ever prosecuted for
violating the State’s mandate, he can obtain a ruling on
the mandate’s constitutionality then.
Capable of Repetition Yet Evading Review. This
exception is inapposite for largely the same reasons the
previous exception is. Here, the challenged mandate
was a product of the pandemic’s early stages, and the
plaintiffs’ objections to it are grounded in the
mandate’s particulars. We are unlikely to see this
mandate in a similar form again. See Thompson v.
App. 11
DeWine, 7 F.4th 521, 525–26 (6th Cir. 2021). The
plaintiffs’ preliminary-injunction appeal is moot.
B.
Whether the claim as a whole is moot depends on
whether there is “a fair prospect that the [challenged]
conduct will recur in the foreseeable future.” Ohio, 969
F.3d at 310. For all the reasons recited above—the
changed circumstances since the State first imposed its
mask mandate, the substantially developed caselaw,
the lack of gamesmanship on the State’s part—we see
no reasonable possibility that the State will impose a
new mask mandate with roughly the same exceptions
as the one originally at issue here. This claim is
moot—indeed palpably so.
*
*
*
We dismiss this appeal and remand with
instructions for the district court to dismiss this claim.
We also vacate the district court’s order denying the
plaintiffs’ motion for a preliminary injunction, given
that they lost their chance to appeal its merits through
no fault of their own. See United States v.
Munsingwear, 340 U.S. 36, 39 (1950).
_________________
CONCURRENCE
_________________
KAREN NELSON MOORE, Circuit Judge,
concurring. Three facts convince me that this claim is
moot. First, in the months since the State lifted the
mask mandate, the Centers for Disease Control has
approved a vaccine for school-age children. FDA
App. 12
Authorizes Pfizer-BioNTech COVID-19 Vaccine for
Emergency Use in Children 5 through 11 Years of Age,
Food & Drug Admin. (Oct. 29, 2021), https://www.fd
a.gov/news-events/press-announcements/fda-authoriz
es-pfizer-biontech-covid-19-vaccine-emergency-usechildren-5-through-11-years-age. Second, the State
declined to reimpose a mask mandate during the spikes
in COVID-19 cases caused by the Delta and Omicron
variants. See Tracking Coronavirus in Michigan: Latest
Map and Case Count, N.Y. Times (last updated May
25, 2022), https://www.nytimes.com/interactive/2021/
us/michigan-covid-cases.html. Third, and relatedly, the
State has now gone close to a year without reimposing
a similar mask mandate. Therefore, I concur in the
majority opinion.
_______________________________________
CONCURRING IN PART AND
DISSENTING IN PART
_______________________________________
CHAD A. READLER, Circuit Judge, concurring in
part and dissenting in part. I concur in parts I and II.A
of Judge Kethledge’s majority opinion, which hold that
plaintiffs’ preliminary injunction appeal is moot. But,
for many of the reasons stated in Judge Bush’s
thoughtful dissent, I believe plaintiffs’ claims for
declaratory relief and a permanent injunction remain
alive. To my mind, mootness of this appeal is
distinguishable from mootness of the underlying
claims.
Plaintiffs asked the en banc court to reverse the
district court’s decision denying a preliminary
injunction. A preliminary injunction’s fundamental
App. 13
purpose is to protect the status quo during litigation.
See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018)
(per curiam). As a result, we lack jurisdiction over this
appeal if there is no reasonable expectation that the
state will reenact the mandate (or something similar)
before the district court enters final judgment. See Ohio
v. U.S. Env’t Prot. Agency, 969 F.3d 306, 309 (6th Cir.
2020).
By all accounts, there is little chance that the state
will do so. The school year is in its waning days, with
summer break on the horizon. The calendar alone, in
other words, dramatically reduces the need for a school
mask mandate. That is true even for students and staff
involved with summer instruction, as COVID-19
typically recedes during the summer, thereby lessening
the need for mask requirements. See Michigan Data,
Mich. Dep’t of Health & Hum. Servs.,
https://www.michigan.gov/coronavirus/stats (last
visited May 24, 2022) (displaying daily cases). In fact,
the state rescinded its mandate last June partly
because “the warmer weather ha[s] greatly reduced the
spread of COVID-19.” Doc. 34-2. Absent any realistic
prospect of a masking-related burden on plaintiffs’
religious liberties before the school bell rings this fall,
a preliminary injunction “would lack any practical
effect” during that period. Ohio, 969 F.3d at 308. Add
in the fact that the district court likely can resolve
expeditiously the “primarily if not entirely legal” issues
that remain, and it becomes evident that plaintiffs’
preliminary injunction appeal is moot. Id. at 309. On
this latter point, I note that the district court has
already performed much of the necessary analysis in
holding that the county’s school mask mandate likely
App. 14
violated the Free Exercise Clause. Resurrection Sch. v.
Hertel, No. 1:20-cv-1016, slip op. at 15–17 (W.D. Mich.
Mar. 3, 2022); see also supra, at 5–6 (explaining that
Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per
curiam), and Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63 (2020) (per curiam), set the legal
framework for plaintiffs’ Free Exercise challenge to the
state’s mask mandate).
“For the case as a whole, however, the mootness
inquiry takes a longer view.” Ohio, 969 F.3d at 310.
That means the district court has jurisdiction over
plaintiffs’ claims for declaratory relief and a permanent
injunction unless the state shows that there is no “fair
prospect” that it will reenact the mandate “in the
foreseeable future.” Id.; see also Speech First, Inc. v.
Schlissel, 939 F.3d 756, 770 (6th Cir. 2019) (citing
Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000)).
Yet the state failed to make that showing. To the
contrary, as Judge Bush explains, a real possibility
remains that the state will restore the mandate. Take
last year as an example. Plaintiffs enjoyed a respite
from mask mandates for much of the summer of 2021
until Ingham County—acting “in compliance with
guidance” from the state—imposed its own school mask
mandate that September. R.80, PageID#1645. The
majority and dissenting opinions disagree about
whether the county’s school mask mandate informs the
issues before the en banc court. But at the very least,
those events offer some insight into how state officials
might confront public health issues as the upcoming
summer turns to fall. See Ohio, 969 F.3d at 309 (noting
App. 15
that application of mootness principles “is driven above
all by practicalities”); see also Hawse v. Page, 7 F.4th
685, 699 (8th Cir. 2021) (Stras, J., dissenting)
(“Whatever else we might be able to say about the
pandemic, absolute clarity is not one of its features.”).
Indeed, we have it on good authority that the state
seemingly has not heeded the many lessons from the
recent decisions in Tandon and Monclova Christian
Academy v. Toledo-Lucas County Health Department,
984 F.3d 477 (6th Cir. 2020) (order). After all, when
asked at oral argument whether the state would
commit not to reenact its earlier mandate, the state’s
counsel bluntly responded: “Absolutely not.” Oral
Argument at 41:18–25; cf. Hawse, 7 F.4th at 699 (Stras,
J., dissenting) (“[T]he court’s novel theory that the
County would not dare ‘flout the Supreme Court’s
intervening pronouncements on equal treatment
between religious exercise and comparable secular
activity’ . . . would be more comforting if it were based
on anything the County had actually done or said.”
(citation omitted)).
All things considered, I believe the preliminary
injunction proceedings are moot. But I would allow the
district court to resolve plaintiffs’ claims for declaratory
relief and a permanent injunction, which seemingly
involve a straightforward application of the rule that a
regulation treating religious exercise worse than any
comparable secular activity must survive strict
scrutiny. See Tandon, 141 S. Ct. at 1296; Monclova,
984 F.3d at 480–82.
App. 16
_________________
DISSENT
_________________
JOHN K. BUSH, Circuit Judge, dissenting. “Article
III judges should not be in the business of declaring an
end to the COVID-19 pandemic[.]” Memphis A. Philip
Randolph Inst. v. Hargett, 2 F.4th 548, 572 (6th Cir.
2021) (Moore, J., dissenting). Rather, we should be
willing to acknowledge “the thing about a once-ina-century crisis”—that “it is hard to know how it will
develop over the coming months and years, particularly
when COVID-19 has defied expectations to this point[,]
with new variants and seasonal surges threatening to
undo hard-won progress.” Id. at 573 (cleaned up). In
this case, however, it appears that these principles will
not carry the day. A court majority instead deems moot
not merely plaintiffs’ preliminary- injunction request,
but their entire case. Thus extinguished is plaintiffs’
opportunity to litigate their claims on the merits under
a proper interpretation of the First Amendment. That
unfortunate result rests, in my view, on a score of
mistaken factual and legal premises. Our collective
experience with two years of on-again-off-again
masking mandates demonstrates that there is at least
a reasonable possibility this dispute could recur. For
that matter, the recent masking reimpositions in
Ingham County itself show that this dispute could
reasonably recur. See Izzy Martin, “Waverly
Community Schools masking up starting Monday,”
WLNS6.com
(May
18,
2022),
https://perma.cc/Z4MR-5JST; Izzy Martin, “East
Lansing Public Schools reinstates mask mandate,”
WLNS6.com (May 13, 2022), https://perma.cc/7SAW-
App. 17
WBY7; Sarah Lehr, “East Lansing schools reinstate
mask mandate beginning Monday,” WKAR.org (May
13, 2022), https://perma.cc/5SDN-V5WT. I therefore
respectfully dissent.
I.
The majority’s short opinion says little about the
background of this case and, by virtue of having
deemed it entirely moot, nothing about its merits. My
approach will differ. A grasp of the underlying factual
and procedural history is crucial to understanding the
justiciability issues the majority places at center stage.
So before turning to mootness, I will detail the origins
of plaintiffs’ First Amendment claims, how they should
have been properly adjudicated by our circuit, and why
that never came to pass.
Resurrection School is a “small, private, Catholic
school in Lansing,” a city itself in Ingham County,
Michigan. Amended Complaint ¶16, R. 21. The School
strives “to integrate the Catholic faith into all portions
of the school day.” Id. ¶1. And it remained committed
to doing so even despite COVID-19. In response to the
pandemic, the School implemented extensive “safety
protocols” to protect its students. Supplemental
Appellant’s Br. at 6–7. Those included social
distancing, “enforced handwashing,” “strict sanitization
and disinfection of its facilities several times a day,”
limitations on who could visit the school, and even a
requirement that students “wear masks in common
areas.” Id. But when it came to masking during
classroom instruction, the School drew the line: no
students would be forced to wear masks “when seated
in the classroom.” Amended Complaint ¶3, R. 21. As it
App. 18
explained, masks present “difficulties . . . for the
spiritual, emotional, and physical development of
younger students.” Id. In particular, they impeded the
School’s religious instruction and violated a sincere
religious obligation against covering faces “made in
God’s image and likeness.” Id. ¶25.
Those scruples notwithstanding, the Michigan
Department of Health and Human Services
(“MDHHS”) promulgated orders in October 2020 that
directly conflicted with the School’s religious views.
Each required that children “participating in
gatherings” such as classroom instruction be masked.
And they contained no religious exemption. Rendered
unlawful, then, was Resurrection School’s continued
practice of unmasked, face-to-face religious instruction.
The School responded soon after with a federal
lawsuit challenging those orders. Its operative
complaint named as defendants Robert Gordon,1 then
the Director of MDHHS; Dana Nessel, the Attorney
General of Michigan; Linda S. Vail, the Health Officer
of the Ingham County Health Department; and Carol
A. Siemon, the Ingham County Prosecuting Attorney.
The School sought declaratory and injunctive relief
against both MDHHS’s and Ingham County’s
enforcement of the restrictions, which the School
alleged violated its and its co-plaintiffs’ First
Amendment rights. Yet despite its knowledge of this
1
Upon Gordon’s departure from MDHHS, he was replaced by
current MDHHS Director Elizabeth Hertel. She thus entered the
suit via the automatic-substitution rule. See Fed. R. App. P.
43(c)(2).
App. 19
religious objection, MDHHS continued to promulgate
masking orders that contained no exemption for
face-to-face religious instruction.
The basic structure of the order that became the
crux of this case was as follows. First, section 7—titled
“Face mask requirement at gatherings”—explained in
subsection (a) that “All persons participating in
gatherings are required to wear a face mask.” But
section 8—titled “Exceptions to face mask
requirements”—then enumerated a host of activities
exempted from masking. In the order’s own words:
Although a face mask is strongly encouraged
even for individuals not required to wear one
(except for children under the age of 2), the
requirement to wear a face mask in gatherings
as required by this order does not apply to
individuals who:
(a)
Are younger than 5 years old, outside of a
child care organization or camp setting
(which are subject to requirements set out
in section 7(e));
(b)
Cannot medically tolerate a face mask;
(c)
Are eating or drinking while seated at a
food service establishment or at a private
residence;
(d)
Are exercising outdoors and able to
consistently maintain six feet of distance
from others;
(e)
Are swimming;
(f)
Are receiving a medical or personal care
service for which removal of the face
mask is necessary;
App. 20
(g)
(h)
(i)
(j)
(k)
(l)
2
Are asked to temporarily remove a face
mask for identification purposes;
Are communicating with someone who is
deaf, deafblind, or hard of hearing and
whose ability to see the mouth is essential
to communication;
Are actively engaged in a public safety
role, including but not limited to law
enforcement, firefighters, or emergency
medical personnel, and where wearing a
face mask would seriously interfere in the
performance of their public safety
responsibilities;
Are engaging in a religious service;2
Are giving a speech for broadcast or to an
audience, provided that the audience is at
least 12 feet away from the speaker; or
Are participating in a testing program
specified in MDHHS’s document entitled
Guidance for Athletics . . . and are
engaged in practice or competition where
the wearing of a mask would be unsafe.
Of note, MDHHS did not consider Resurrection School’s
face-to-face religious instruction to qualify for the “religious
service” exemption. To the contrary, it apparently construed
“service” to include only more formalized worship settings, such as
a sermon. Thus, as counsel for the State seemed to confirm at oral
argument, the order would permit Resurrection School’s students
to attend Mass on campus unmasked, and yet would bar the very
same students from attending face-to-face religious instruction in
the classroom unmasked. See Recording of Oral Arg. at 1:03:40–
1:07:13.
App. 21
See “March 5, 2021 Gatherings and Face Mask Order,”
Michigan.gov (Mar. 5, 2021), https://perma.cc/MK89DGZU.
This order then detailed several additional
provisions exempting various other secular activities
from the masking requirement. For instance, a
separate portion concerning subsection (f)—the
“personal care services” exemption—defined that term
to include such “non-essential personal care services”
as “hair, nail, tanning, massage, traditional spa, tattoo,
body art, piercing services, and similar personal
services.” See id. Likewise, both collegiate and
professional athletes were permitted to compete
unmasked. See Becket Amicus Br. at 10 n.12; see also
“Interim Guidance for Athletics,” Michigan.gov (Apr. 1,
2021), https://perma.cc/U42B-3E3F (explaining that
athletes with negative COVID tests were permitted to
compete unmasked).
Read together, the orders and guidance thus
established both a facially neutral and generally
applicable masking requirement on the one hand, and,
on the other, a host of secular exemptions to that
requirement that undermined its purported general
applicability. Indeed, everyone here agrees that the
broad language of section 7 swept in Resurrection
School’s classroom instruction. But everyone also
agrees that the companion provision, section 8,
exempted from that language dining at a restaurant;
dining with friends at a private gathering; receiving a
haircut, tattoo, or massage; sessions in a tanning booth;
or the installation of a nose-ring. Predictably, in
response to that obvious disparity, Resurrection School
App. 22
moved the district court to enter a preliminary
injunction as the parties litigated the case.
The district court denied that request, however, in
mid-December 2020. It reasoned that the relevant
analytical framework arose from this circuit’s
published decision in Commonwealth v. Beshear,
rendered just a few weeks earlier. See Resurrection
Sch. v. Gordon, 507 F. Supp. 3d 897, 900 (W.D. Mich.
2020) (citing Commonwealth v. Beshear, 981 F.3d 505,
508–09 (6th Cir. 2020)). Citing Beshear and a handful
of other cases, the district court explained that a
restriction on religious exercise triggers strict scrutiny
when it is (1) motivated by animus, (2) regulates
religious activity as such, or (3) is neutral and
generally applicable on its face but simultaneously so
full of exemptions for comparable secular activities that
it lacks neutrality and general applicability in practice.
Id. at 901. Beshear itself had applied that tripartite
test to a COVID-related closure the Kentucky
government had imposed upon a religious school.
Beshear, 981 F.3d at 507–09. Discerning neither
animus nor targeting, Beshear focused its inquiry on
general applicability. Id. at 509. But it reasoned that
the contested order in that case was generally
applicable, given that it “applie[d] to all public and
private elementary and secondary schools in the
Commonwealth, religious or otherwise[.]” Id. Because
the order treated the religious school’s identical secular
comparator equally, Beshear reasoned, its incidental
effect on religious exercise “need not be justified by a
compelling governmental interest.” Id. And so Beshear
determined that the contested orders likely presented
no First Amendment violation. Id. at 509–10.
App. 23
In the district court’s view, Beshear similarly
disposed of Resurrection School’s challenge to
MDHHS’s analogous masking order. See Resurrection
Sch., 507 F. Supp. 3d at 901–02. True, it noted, the
order permitted those engaging in copious other secular
activities to do so unmasked. Id. at 902. But the order
also treated Resurrection School and its identical
secular comparator—public schools—the very same. Id.
(“[T]he exceptions apply to public schools and private
schools equally, and they apply to secular schools and
religious schools equally.”). Thus, the district court
reasoned, plaintiffs’ showing of merely an “incidental”
burden undercut their “likelihood of success on the
merits,” and so it denied relief. Id. Plaintiffs appealed
that decision soon after.
Yet as their case was pending before a panel of this
circuit, three precedential developments unfolded that
were favorable for the School’s position. First was our
circuit’s decision in Monclova. 984 F.3d 477 (6th Cir.
2020). Like Beshear, and like this case, Monclova
concerned a COVID restriction imposed upon religious
schools, and against which they raised a First
Amendment objection. Id. at 479. Specifically, the
Toledo-Lucas County Health Department had ordered
the shutdown of every school in its jurisdiction—public,
private, and parochial—“to slow the spread of
COVID-19.” Id. So just as in Beshear, the restriction
applied both to religious exercise and to its identical
secular analogues. Id. But at the same time, Monclova
noted, the County had not imposed its shutdown order
upon a host of secular activities—“gyms, tanning
salons, office buildings, and a large casino”—all of
which posed at least comparable risks to public health.
App. 24
Id. at 479, 482. In other words, Monclova rejected
Beshear’s assumption that general applicability should
be assessed solely by considering whether the
restriction burdens identical secular conduct. See id. at
481 (“We find no support for that proposition in the
relevant Supreme Court caselaw.”). To the contrary,
Monclova reasoned that other “similar” and
“comparable secular facilities” were relevant to the
general-applicability analysis. Id. at 480. And,
discerning no compelling rationale for the County’s
preferential treatment of those comparable secular
activities, Monclova held the religious schools likely to
succeed in showing a First Amendment violation. Id. at
482.
So why was all that consistent with Beshear—an
earlier, published decision? Future panels are bound
only by prior panels’ holdings—the reasoning found in
the earlier decision that both “contribute[d] to the
judgment” and on which it is “clear” the earlier court
“consciously reached a conclusion.” Wright v.
Spaulding, 939 F.3d 695, 701–02 (6th Cir. 2019). Yet as
Monclova itself explained, Beshear “said nothing about
the question” at issue in Monclova: “namely, whether
an order closing public and parochial schools violates
the [Free Exercise] Clause if it leaves other comparable
secular actors less restricted than the closed parochial
schools.” Monclova, 984 F.3d at 481. Unconstrained by
Beshear on that issue, therefore, Monclova analyzed
whether the relevant order was generally applicable
when judged against not only the burdens placed upon
the religious school’s identical secular analogues, but
also upon other, at least similar secular comparators.
Id. at 481–82. Monclova then reasoned that because
App. 25
Lucas County had shuttered a religious school while
exempting “gyms, tanning salons, office buildings, and
the Hollywood Casino,” its order was subject to, and
likely failed, strict scrutiny. Id. at 482.
A few months after Monclova came the second
development: the Supreme Court, in Tandon v.
Newsom, endorsed the same analytical framework as
detailed in Monclova. 141 S. Ct. 1294 (2021); see id. at
1296. Tandon concerned yet another COVID
restriction; this time, California’s bar on multiplefamily at-home religious gatherings. Id. at 1297.
Despite that restriction, California simultaneously
exempted “hair salons, retail stores, personal care
services, movie theaters, private suites at sporting
events and concerts, and indoor restaurants.” Id. at
1297. If Beshear were the law, of course, none of those
facts would have mattered to the Supreme Court.
Instead, much like the Ninth Circuit below, it would
have examined merely how California treated the
proscribed conduct’s identical secular analogues—
multiple-family at-home gatherings (for instance, a
book club) to discuss secular works. See Tandon v.
Newsom, 992 F.3d 916, 920 (9th Cir. 2021). Beshear
would have dictated that those secular activities were
the only relevant comparators, as only those activities
would have presented identical risks to at-home
religious gatherings. Yet that is precisely not how the
Supreme Court reasoned. It instead deemed the
exempted secular activities like hair salons and
restaurants “comparable” to the religious gatherings,
given that each imposed risks at least “similar.”
Tandon, 141 S. Ct. at 1296–97. And thus it held that
California’s failure to regulate such secular activities
App. 26
as harshly as it had in-home religious gatherings
rendered its regime likely unconstitutional. Id. at 1297.
Following Tandon was the third development: the
Supreme Court’s decision in Fulton v. City of
Philadelphia, which augmented the generalapplicability principles detailed in Tandon. Fulton v.
City of Philadelphia, 141 S. Ct. 1868 (2021). In Fulton,
the Court confronted the City of Philadelphia’s refusal
to contract with Catholic Social Services (“CSS”), a
foster-care services provider, because of CSS’s sincerely
held religious belief that same-sex couples should not
be certified as prospective foster families. Id. at 1875.
The City ended its fifty-year relationship with CSS
because of its strong interest, or so it asserted, in
opposing anti-homosexual discrimination. Id. Yet the
City’s “standard foster care contract” that it had signed
with CSS specified that the City Commissioner, in his
“sole discretion,” could grant certain organizations of
his choosing an exemption from that general policy. Id.
at 1878. CSS’s sincere religious objection to same-sex
foster couples was apparently deemed an unworthy
rationale for the dispensing of such relief. Id. So CSS
sued, and the Supreme Court took up its case.
In its unanimous ruling for CSS, the Court
reaffirmed Tandon’s conclusion that a law “lacks
general applicability if it prohibits religious conduct
while permitting secular conduct that undermines the
government’s asserted interests in a similar way.” Id.
at 1877. It thus seemed that CSS had a powerful
argument that the Commissioner’s ability to exempt
organizations from the anti-discrimination rule refuted
the regime’s general applicability. After all, the
App. 27
contract apparently allowed the Commissioner to
dispense exemptions for secular rationales that would
have undermined the City’s anti-discrimination
interest in precisely the same way as would have an
exemption for CSS. Id. at 1881–82. But the Court went
even further in criticizing Philadelphia’s regime. As it
explained, the contract’s provision conferring executive
discretion to grant secular exemptions removed the law
entirely from the framework established by
Employment Division v. Smith, 494 U.S. 872 (1990),
under which facially general laws are presumptively
valid. Fulton, 141 S. Ct. at 1878. To the contrary, the
executive-discretion provision made the contract more
like an individualized exemption scheme, which the
Court held long ago in Sherbert v. Verner was
presumptively invalid and subject to strict scrutiny.
Id.; see also Sherbert v. Verner, 374 U.S. 398, 403
(1963); Smith, 494 U.S. at 884 (“[W]here the State has
in place a system of individual exemptions, it may not
refuse to extend that system to cases of ‘religious
hardship’ without compelling reason.”). And because
the City could “offer[] no compelling reason why it
ha[d] a particular interest in denying an exception to
CSS while making them available to others,” the Court
deemed the City’s refusal to contract with CSS unable
to satisfy that standard. Fulton, 141 S. Ct. at 1882.
II.
Heading into their argument for this case, therefore,
Resurrection School’s lawyers must surely have felt
armed with a formidable new degree of precedential
firepower. Monclova had deemed likely invalid a
governmental restriction on religious schools that
App. 28
failed to regulate comparable (but non-identical)
secular conduct. 984 F.3d at 482. Tandon had then
ratified that rule by explaining how California’s
regulations on at-home religious gatherings were likely
invalid for their failure to equally burden “comparable”
conduct in hair salons, personal-care-service venues,
and restaurants. 141 S. Ct. at 1297. Fulton then buried
the “only-identical-secular-conduct-counts” theory of
general applicability, while simultaneously explaining
that a regime conferring executive discretion to codify
new secular exemptions from a purportedly general law
(much as with MDHHS’s continuous revisions of its
orders to exempt new categories of secular conduct),
merited strict scrutiny. See, e.g., Fulton, 141 S. Ct. at
1879 (“The creation of a formal mechanism for granting
exceptions renders a policy not generally applicable,
regardless whether any exceptions have been given,
because it ‘invite[s]’ the government to decide which
reasons for not complying with the policy are worthy of
solicitude[.]”).
Surprisingly, however, the panel majority in this
case attempted to weave around each of those
precedents to affirm the district court’s denial of
preliminary relief.3 The panel majority recognized, of
3
I realize that as a technical jurisdictional matter under 28 U.S.C.
§ 1292(a)(1), we as the en banc court are reviewing the
preliminary-injunction decision of the district court rather than
the panel majority’s subsequent affirmation of that decision. I
include a discussion of the panel majority’s analysis for two
reasons. First, exposition of the panel majority’s errors is required
for an exposition of the proper First Amendment standard that
should have governed Resurrection School’s claims—a standard on
which today’s majority opinion has necessarily shed no light given
App. 29
course, that under the rule of decision established in
Monclova, it would have had to consider the order’s
exemptions for comparable (but non-identical) secular
conduct when assessing whether the restriction upon
Resurrection School was generally applicable. See
Resurrection Sch. v. Hertel, 11 F.4th 437, 456–57 (6th
Cir. 2021), vacated 16 F.4th 1215 (6th Cir. 2021). But
the panel majority declined to apply Monclova on the
ground that it conflicted with an earlier, published
decision of the Sixth Circuit—Commonwealth v.
Beshear. Id. at 457 (citing Beshear, 981 F.3d at 505). In
response to Monclova’s pointthat Beshear never
actually rejected the relevance of non-identical secular
comparators, the panel majority claimed that, to the
contrary, “[i]n Beshear, we did consider whether the
appropriate comparator was other non-religious schools
or other non-school entities and held that the former
was the appropriate comparator.” Id. (emphasis added).
How did the panel majority attempt to sustain such
a claim? By pointing to some of the briefs from Beshear
that had suggested a broader comparator analysis. Id.
Thus, the panel majority reasoned, because the “issue
was brought to the attention of the court,” Beshear had
apparently implicitly rejected Monclova’s comparator
analysis. Id. (cleaned up). And under the law-of-thecircuit doctrine, in the panel majority’s words, when
its conclusion that the entire case is nonjusticiable. Second, the
panel majority’s reasoning here—particularly its view that
MDHHS’s order was lawful even under Tandon—guts the present
majority’s argument in favor of mootness that Tandon rendered a
future MDHHS-style order so unthinkable that it could never
recur.
App. 30
“[f]orced to choose between conflicting precedents, we
must follow the first one.” Id. (quoting United States v.
Jarvis, 999 F.3d 442, 445–46 (6th Cir. 2021)). So the
panel majority understood Beshear—not Monclova—to
represent the law of the Sixth Circuit. Id.
What about Fulton? That precedent would seem to
contain a powerful indictment of MDHHS’s evershifting exemption scheme, as “it ‘invite[d]’ the
government to decide which reasons for not complying
with the policy [we]re worthy of solicitude.” Fulton, 141
S. Ct. at 1879. For instance, after initially instituting
its masking order in October 2020, MDHHS later
decided that it should codify new secular exemptions
for “‘personal care services, like tanning and
piercing[s].” Majority Op. at 4. Yet as MDHHS
exercised its discretion to dispense favorable treatment
for such secular activities, its various revisions to the
policy steadfastly refused to codify an analogous
religious exemption for entities like Resurrection
School. And it withheld such equal treatment even
after gaining actual knowledge of the School’s sincere
religious objections to the masking policy, first
explained in the School’s federal complaint against
MDHHS filed in October
For the panel majority, however, Fulton appears to
have been thought virtually irrelevant. Its opinion
included no substantive analysis of Fulton’s holding,
instead simply reciting Fulton’s basic facts while
making no attempt to apply that case’s executivediscretion principle to Michigan’s masking regime. See
Resurrection Sch., 11 F.4th at 458–59. The Supreme
Court’s decision was ultimately dismissed as
App. 31
containing merely a “narrow holding focused on a
contract provision.” Id. at 459.
And what about Tandon? As an on-point Supreme
Court decision, it obviously would seem to supply the
relevant analytical framework, no matter a putative
conflict between Monclova and Beshear. Not so,
however, at least according to the panel majority. As it
expressly claimed, “Tandon v. Newsom does not compel
a different comparator.” Id. at 457 (citing Tandon, 141
S. Ct. at 1294). That was supposedly because the
Supreme Court had deemed California’s regime likely
invalid for treating “comparable secular activities more
favorably than at-home religious exercise[.]” Id. Yet the
panel majority reasoned that no other exempted
secular activities under the MDHHS order were even
comparable to face-to-face religious instruction. Id. The
risks posed by schools were instead “unique,” since only
schools brought children together “in an indoor setting
and every day.” Id. at 457–58. As a result, the only
proper comparator to Resurrection School remained its
identical secular analogues—“public and private
non-religious schools.” Id. at 458.
Of course, that analysis is patently inconsistent
with the Supreme Court’s reasoning in Tandon, which
would have dictated that non-identical secular
comparators be considered as well. Tandon, 141 S. Ct.
at 1296–97. Rather, the panel majority’s approach
tracked almost perfectly with the district court and
Ninth Circuit’s reasoning in Tandon that the Supreme
Court itself rejected. Indeed, in denying relief—and
foreshadowing the exact language the panel majority
here would later employ—the district court there
App. 32
reasoned that the “unique” risks of at-home religious
gatherings made secular at-home gatherings the only
valid comparator. See Tandon v. Newsom, 517 F. Supp.
3d 922, 976 (N.D. Cal. 2021). And the restrictions were
generally applicable, said the Tandon district court,
since California treated each form of gathering equally.
Id. A divided panel of the Ninth Circuit then doubled
down on that conclusion. It too reasoned that the only
valid comparator to religious at-home gatherings was
secular at-home gatherings, given that only secular
at-home gatherings posed identical risks. Tandon, 992
F.3d at 920. For instance, vis-à-vis California’s
less-regulated “train stations, malls, salons, and
airports,” at-home gatherings were more likely to
involve “prolonged conversations” in “less ventilated”
settings. Id. at 923, 925. And because California
regulated equally both religious and secular at-home
gatherings, the Ninth Circuit concluded as well that
the religious restriction merited mere rational-basis
review. Id. at 920. Yet the Supreme Court
unequivocally rejected such reasoning in its own
opinion on the dispute. See Tandon, 141 S. Ct. at
1296–97. Tandon, therefore, should have indicated to
the panel majority that its refusal to consider a broader
class of comparators was misguided.
And perhaps it did. Lacking conviction in its
parsimonious reading of Tandon, apparently, the panel
majority claimed that even if it were required to
embrace a “broader conception of comparable secular
activity, the MDHHS orders [we]re not so riddled with
secular exceptions as to fail to be neutral and generally
applicable.” Resurrection Sch., 11 F.4th at 458. So the
underlying premise from which the panel majority
App. 33
reasoned is that there can exist some arbitrarily large
number of exemptions disparately favoring secular
conduct but that pose no First Amendment concern, at
least until the exemptions can be deemed to “riddle”
the challenged law. Id. This supposition stands in
obvious tension with Tandon, which explained that
“government 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.” Tandon, 141 S. Ct. at 1296. Thus, it
is difficult to understand how the panel majority
thought itself correctly applying Tandon here. Its
purported “application” of Tandon simply concluded
that none of the exempted secular activities was
comparable to face-to-face religious instruction—a
rehashing of its earlier point that such instruction
posed “unique” risks and thus could be compared only
to its perfect secular analogue. Resurrection Sch., 11
F.4th at 458.
In any event, none of the panel majority’s
second-order attempts to distinguish Resurrection
School’s face-to-face instruction from the various
secular activities MDHHS exempted can withstand
analytical scrutiny. Take first, for instance, the panel
majority’s rationalization of the exemptions for eating,
drinking, swimming, and medical treatments—said to
be “inherently incompatible with wearing a mask.” Id.
at 458 (cleaned up). The apparent implication of this
comment is that those activities are physically
impossible while wearing a mask and thus are
“inherently incompatible,” while simultaneous masking
App. 34
and religious instruction is physically possible, and
thus “compatible.” Id.
Yet the problems with this argument are legion.
Resurrection School has consistently asserted that
simultaneous masking and proper religious instruction
is physically impossible, given that seeing students’
faces is critical to the school’s religious instruction. See,
e.g., Amended Complaint ¶¶26–35, 130–32, R. 21;
Appellant’s Br. at 13–14. Likewise, it has also asserted
that simultaneous masking and religious instruction is
spiritually impossible, since it violates its schoolmembers’ sincere religious beliefs. Id. The panel
majority’s conclusion that masking and religious
instruction are “compatible” after all seems predicated
on nothing more than a judicial reappraisal of what
Resurrection School’s religious scruples do and do not
permit. See Resurrection Sch., 11 F.4th at 458
(describing plaintiffs’ sincere religious objection to
masked instruction as rendering masking merely
“undesirable”for them).4 For good reason, however, the
Supreme Court has long instructed that this
inquisitorial behavior is inappropriate for a federal
tribunal. See, e.g., Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531 (“[R]eligious
beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First
Amendment protection.” (quoting Thomas v. Rev. Bd.
4
Note the logical implication of this argument for religious liberty
more broadly. It was physically possible for the schoolchildren in
Barnette, for instance, to salute the flag, even though doing so
would have violated their sincere religious beliefs. See W. Va. St.
Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
App. 35
of Ind. Emp. Sec. Div., 540 U.S. 707, 714 (1981)); see
also United States v. Ballard, 322 U.S. 78, 85–88 (1944)
(holding that courts may not inquire into the truth or
falsity of sincerely held religious beliefs).
Other alleged distinctions the panel majority
marshaled to justify the favorable treatment of the
exempted secular activities included that they either
(a) involved interactions “short[er] in duration” than
classroom instruction or (b) had “a stringent social
distancing requirement.” Resurrection Sch., 11 F.4th at
458. Supposed distinction (b) is difficult to even
understand. Resurrection School itself had a “stringent
social distancing requirement”—including during
classroom instruction—as the School repeatedly
explained in its briefs. See Appellant’s Br. at 15–16, 29,
33–34; Corrected Reply Br. at 1, 4. If anything, then,
that both the School and certain of the exempted
secular activities had a social-distancing requirement
would make them more alike for comparator analysis,
not less. Supposed distinction (a) is probably true for at
least certain of the secular exemptions, like briefly
lowering a mask when voting for identification
purposes. But it hardly could be said to characterize all
the secular activities the orders exempted. For
instance, the orders would permit someone engaging in
secular activities to spend all day unmasked while
indoors: breakfast at a diner; then a haircut; then
lunch; then a massage, piercing, or tattoo; then dinner.
By contrast, a student attending Resurrection School
necessarily could not have spent the full day
unmasked. Masks were required while walking into the
school and while walking in common areas, such as in
hallways between classes. Supplemental Br. at 6. It
App. 36
was only during classroom instruction itself that masks
were asserted to conflict with religious instruction. See
id. at 6–7; Amended Complaint ¶¶26–35; 130–32. So
the panel majority’s claim that Resurrection School
would pose “unique” dangers if granted an analogous
exemption cannot be sustained on these alternative
grounds either. Resurrection Sch., 11 F.4th at 457.
The panel majority last asserted that certain other
secular exemptions—for police, fire, and emergency
medical services—were distinguishable (a) because
they were necessary to fulfill “important obligations” to
“citizens’ health and safety” and (b) because “wearing
a face mask would seriously interfere in the
performance of their public safety responsibilities.” Id.
at 458. (emphasis deleted). Yet each of these purported
distinctions rests, once again, not on any known
precept of legal reasoning, but instead a value
judgment that Resurrection School’s religious views are
neither an “important obligation[ ]” nor sincerely held.
Id. Only by entertaining the first supposition could the
panel majority have concluded that unmasked, face-toface religious instruction does not servean “important
obligation[ ].” Id. And only by entertaining the second—
that the School’s religious beliefs are insincere—could
the panel majority have concluded that masking does
not “seriously interfere” with the School’s religious
mission. Id. at 458. These implicit premises went
unstated of course, for reasons about which I will not
speculate, other than to note that they clearly conflict
with established Supreme Court precedent concerning
inquisition into the sincerity of religious views. See
Church of the Lukumi Babalu Aye, Inc., 508 U.S. at
531; Thomas, 450 U.S. at 714; Ballard, 322 U.S. at 88.
App. 37
Thus was the world as we knew it in August 2021,
after the panel decision emerged. The panel majority
considered Beshear controlling, Monclova but a nullity
under the law-of-the-circuit doctrine, Tandon to compel
no “different comparator,” and Fulton’s “narrow
holding” seemingly irrelevant per se. See Resurrection
Sch., 11 F.4th at 457–59. With nowhere left to go but a
petition for certiorari or rehearing en banc,
Resurrection School availed itself of the latter path in
the hope that it might vindicate its rights at last
against MDHHS’s illegal order.
III.
And, for good reason, we granted that request. See
Resurrection Sch. v. Hertel, 16 F.4th 1215, 1216 (6th
Cir. 2021). Given the clear conflict among Beshear,
Monclova, and the panel decision in this case,
rehearing en banc became “necessary to secure and
maintain [the] uniformity of the court’s decisions.” See
Fed. R. App. P. 35(b)(1)(A). And given the additional
tension between the panel decision and Tandon,
rehearing en banc was likewise necessary to restore
our precedent’s conformity “with a decision of the
United States Supreme Court.” Id. Unfortunately,
however, today’s majority has achieved neither task.
By declaring plaintiffs’ entire case nonjusticiable, the
majority has necessarily said nothing about the proper
rule of decision for First Amendment claims and
nothing about whether Beshear or Monclova represents
the law of our circuit. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101–02 (1998). That decision
is wrong as a matter of both substance and procedure,
and I shall now explain why.
App. 38
A. MDHHS’s and Ingham County’s Voluntary
Cessation of the Restrictions Did Not Moot the
Case, and their Orders are Capable of Repetition,
Yet Evading Review
The leading edge of the majority’s argument that
Resurrection School’s challenge is now moot arises
from the fact that MDHHS rescinded its masking order
“almost a year ago” in June 2021. Majority Op. at 2.5
True, Resurrection School is not subject to MDHHS’s
order at present. But as the Supreme Court has
repeatedly explained—in the very context of COVID
restrictions, no less—a defendant’s voluntary cessation
of challenged conduct cannot alone moot a case. See
Tandon, 141 S. Ct. at 1294 (“[E]ven if the government
withdraws or modifies a COVID restriction in the
course of litigation, that does not necessarily moot the
case.”); see also Already, LLC v. Nike, 568 U.S. 85, 91
(2013) (“[A] defendant cannot automatically moot a
case simply by ending its unlawful conduct once
sued.”); Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (holding that
because the defendant had “not carried the ‘heavy
5
Note how MDHHS’s order was already withdrawn by the time
the panel majority adjudicated its legality in August 2021.
Ironically, the panel majority first had to conclude that the
mandate was capable of repetition, yet evading review and that
defendants’ voluntary cessation did not moot the case in order to
deny the religious-liberty claim. See Resurrection Sch., 11 F.4th at
452 (holding that defendants’ voluntary cessation did not moot the
case because it is not “‘absolutely clear’ that [defendants] will not
reimpose a mask requirement” and because “[p]laintiffs’ claims
further come within the exception to the mootness doctrine for
actions that are ‘capable of repetition, yet evading review.’”).
App. 39
burden’ of making ‘absolutely clear’ that it could not
revert to its [prior] policy,” the controversy was not
moot); Friends of the Earth, Inc. v. Laidlaw Env. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (“It is well settled
that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to
determine the legality of the practice.” (cleaned up)).
Rather, such voluntary cessation moots the case only if
the party claiming mootness—here, defendants—meets
its “formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Already, LLC, 568
U.S. at 91 (quoting Friends of the Earth, Inc., 528 U.S.
at 190).
Likewise, the cessation of challenged conduct also
cannot moot a case when that conduct is “capable of
repetition, yet evading review.” Kingdomware Tech.,
Inc. v. United States, 579 U.S. 162, 170 (2016) (quoting
Spencer v. Kenma, 523 U.S. 1, 17 (1998)). This
additional doctrine6 becomes relevant when two
6
The voluntary cessation and capable of repetition, yet evading
review doctrines are sometimes called “exceptions” to Article III
mootness. See, e.g., Resurrection Sch., 11 F.4th at 449. I find this
term misleading, as it implies that the doctrines would permit a
federal court to spuriously enjoin some contested behavior that
was certain never to recur. Federal courts, of course, do not have
the power to render advisory opinions. See Preiser v. Newkirk, 422
U.S. 395, 401 (1975). But the two aforementioned doctrines, in my
view, are consistent with that principle, because they “merely
recognize a shift from a present harm to a potential future harm.”
Tyler B. Lindley, The Constitutional Model of Mootness, 48 BYU
L. Rev. __ (draft at 1) (forthcoming 2023), https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=4050643. In this sense, the
“exceptions are not really exceptions at all,” given that it is
App. 40
conditions apply: “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation
that the same complaining party will be subject to the
same action again.” Kingdomware Tech., Inc., 579 U.S.
at 170 (cleaned up) (quoting Spencer, 523 U.S. at 17);
see also Weinstein v. Bradford, 423 U.S. 147, 148
(1975). No one here much contests that MDHHS’s
order satisfies element 1—and for good reason. The
Supreme Court has held that a period of even “two
years is too short to complete judicial review of the
lawfulness” of challenged conduct. Kingdomware Tech.,
Inc., 579 U.S. at 170 (citing S. Pac. Terminal Co. v.
ICC, 219 U.S. 498, 514–16 (1911)). So our only dispute
concerns element 2—whether there exists a reasonable
possibility that MDHHS could subject Resurrection
School to a masking restriction once again. Id.
Indeed, as the majority itself notes, a reasonable
possibility of recurrence is the critical inquiry around
which both the relevant doctrines—voluntary cessation
and capable of repetition, yet evading review—coalesce
in this case. Majority Op. at 5–7. In the majority’s view,
however, neither doctrine absolves the preliminaryinjunction request (or even the case itself) of mootness,
as there is “no reasonable possibility” that MDHHS
could again subject Resurrection School to the
uncontroversial Article III courts may dispense remedies to
mitigate potential future harms. Id.; see, e.g., Ex parte Young, 209
U.S. 123 (1908). So I do not consider myself to be advocating for
the application of true “exceptions” to Article III in these pages;
rather, I believe that whether “the harm recurs in the future” from
a mask mandate “is likely enough” here “to satisfy the
requirements of Article III.” Lindley, supra, draft at 8.
App. 41
challenged restriction. Id. at 7. The majority’s
conclusion appears to rest upon four principal
arguments: (1) defendants’ good-faith rescission of the
order and “political accountability” show that MDHHS
would not reimpose a mandate; (2) Ingham County’s
orders—rescinded only in February—are irrelevant to
the litigation against MDHHS; (3) the changed legal
landscape after Tandon shows that no reasonable
officer would reimpose an MDHHS-style order; and
(4) the threat from COVID-19 has abated such that
there is “no reasonable possibility” MDHHS (or Ingham
County) could reimpose a mandate. Id. at 5–7. As
explained below, however, none of these proffered
rationales can withstand serious scrutiny.
1. Claim One: Good-Faith Rescission and
“Political Accountability”
The first reason given for why the case is
extinguished is that MDHHS rescinded its order
months rather than weeks after being sued, supporting
an inference of good-faith rescission under Speech
First, and that, as well, “defendants’ own political
accountability” would prevent them from reimposing a
similar restriction. Id. at 5 (citing Speech First, Inc. v.
Schlissel, 939 F.3d 756, 769 (6th Cir. 2019)). I will
address those points in turn.
As to good faith, the Speech First decision actually
undermines the majority’s reasoning rather than
supporting it. That case concerned a First Amendment
challenge levied against the University of Michigan
Office of Student Conflict Resolution’s (“OSCR”)
overbroad definitions of the terms “harassing” and
“bullying.” Speech First, Inc., 939 F.3d at 762. About a
App. 42
month after the challengers filed suit, OSCR removed
the objectionable definitions from its website, so the
district court deemed the case moot. Id.; see also Speech
First, Inc. v. Schlissel, 333 F. Supp. 3d 700, 714 (E.D.
Mich. 2018) (explaining the timeline of the definitions’
removal). In reversing that determination, however, we
evaluated not merely one factor (good faith), but four:
good faith; the University’s refusal to disavow
reenactment of the challenged definitions; the
rescission’s status as a “discretionary[ ] and easily
reversible action[ ]”; and the definitions’ continued
defense by the University. Speech First, Inc., 939 F.3d
at 768–70. So how does MDHHS’s behavior fare under
the framework that Speech First established? Not so
well. The “good faith” contention as a rationale for a
mootness finding makes little sense in this context, and
the latter three factors from Speech First clearly cut
against the majority’s position.
Good Faith. A defendant’s bad-faith rescission—
rescission done as in Speech First itself to purposefully
evade judicial review—is no doubt insufficient by itself
to moot a case. The majority’s non sequitur here is to
argue the reverse—that because MDHHS’s rescission
was done in apparent good faith, MDHHS thus will
never reimplement the restriction. In the context of
this case, however, there is no necessary relationship
between those two propositions. Indeed, MDHHS could
have rescinded its orders in perfectly good faith and yet
could still reinstitute them in perfectly good faith as
well. Why? Because MDHHS did not rescind its orders
on the ground that they might conflict with the First
Amendment—a matter of legal principle not contingent
on shifting real-world conditions. The agency instead
App. 43
cited improving factual circumstances surrounding
COVID-19. Because those circumstances could
change—and, in fact, are changing—the agency could
reinstitute its orders in light of updated circumstances,
even if its earlier rescission had been in good faith
under previous circumstances. Merely that MDHHS’s
rescission occurred in alleged good faith in response to
one set of facts, in other words, tells us nothing about
whether MDHHS could reinstitute its orders in light of
some different set of facts. So what about the other
three considerations mentioned above?
A Refusal to Disavow Reenactment. As we
recognized in Speech First, a defendant’s failure to
“affirmatively state[ ] that it does not intend to reenact
the challenged” provision counsels against a finding of
mootness. Id. at 769. Thus, we held that the mere
absence in the record of the University’s disavowal of
its prior, constitutionally suspect definitions created an
inference that they could be reenacted. Id. Here, by
contrast, we confront no uncertainty about whether
MDHHS has disavowed reimposition of its masking
order. To the contrary, MDHHS’s counsel at oral
argument explicitly refused to disavow its reimposition.
The Court pressed counsel on this point directly,
asking, “Are you willing to commit today that the state
won’t reenact its prior rule?” Recording of Oral Arg. at
41:18–41:25. Counsel’s response was emphatic:
“Absolutely not.” Id. So Resurrection School’s argument
on this factor is even stronger than was Speech First’s.
There is no uncertainty about whether MDHHS has or
might disavow reinstitution of its mask mandate; cf.
Speech First, 939 F.3d at 769, it already categorically
App. 44
told us that it is keeping the option of another mandate
on the table.
A Discretionary and Easily Reversible Action.
Additionally, Speech First recognized a key distinction
between rescission effected by the legislature’s passing
of a new law versus merely an executive body’s
“discretionary[ ] and easily reversible” withdrawal of
some contested restriction. Id. at 768. As we there
explained, when “the government voluntarily ceases its
actions by enacting new legislation or repealing the
challenged legislation, that change will presumptively
moot the case”—a concept that we referred to as the
judicial “solicitude” afforded the legislature’s decision.
Id. By contrast, however, the “easily reversible”
cessation of an executive-branch action does not
presumptively moot a case. Id. Rather, “significantly
more than [such] bare solicitude itself is necessary to
show that the voluntary cessation moots the claim.” Id.
(emphasis added).
The import of this distinction for today’s dispute?
Counsel for MDHHS conceded at oral argument that
MDHHS could reinstitute its masking order “on a
moment’s notice,” “without the legislature,” “on their
own,” and “without any other approval.” Recording of
Oral Arg. at 43:42–44:03. Thus we owe no deference to
MDHHS’s bare rescission of its order. See Speech First,
939 F.3d at 768. Its rescission was, instead, a
quintessential “easily reversible” executive-branch
action, for which a “significantly” higher showing is
required before diagnosing the case as moot. Id.
A Continued Defense. Last, both Speech First and
the Supreme Court’s own precedents instruct that a
App. 45
challenge to a rescinded policy is unlikely moot when
the defendant mounts a vigorous defense of the policy’s
lawfulness. See id. at 770 (“Significantly, the
University continues to defend its use of the challenged
definitions.”); see also Parents Involved in Comm. Sch.
v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007)
(“[T]he district vigorously defends the constitutionality
of its race-based program, and nowhere suggests that
if this litigation is resolved in its favor it will not
resume using race to assign students. Voluntary
cessation does not moot a case or controversy unless
subsequent events make it absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur, a heavy burden that [defendant] has
clearly not met.” (cleaned up)). The reason for such
holdings is obvious: if the defendant admits the error of
his ways, it supports an inference that he has
acquiesced in refusing to commit future violations. Yet
a vigorous defense creates exactly the opposite
inference: the defendant’s desired freedom to resume
the challenged conduct shows that it is not “absolutely
clear” the defendant will abstain from those future
violations.
As applied to this case, if ever there were a
“vigorous defense” of a contested policy, MDHHS and
Ingham County have mounted it. Both have steadfastly
refused to admit that their policies of declining a
religious exemption to Resurrection School violated the
First Amendment. To the contrary, they have insisted
upon the constitutionality of their policies before the
district court, before the original panel, and now before
the en banc court. Echoing the panel majority, MDHHS
contends that its orders were neutral and generally
App. 46
applicable, that Tandon and Fulton cannot compel a
different result, and that even if its orders were subject
to strict scrutiny, they would satisfy that standard. See
MDHHS Supplemental Br. at 17 (“Tandon’s framework
underscores that there is no Free Exercise Clause
violation here, and Fulton offers little guidance on
comparability.”).
Ingham County likewise believes the orders are
neutral and generally applicable, even despite Tandon
and Fulton, and could survive strict scrutiny as well.
See Ingham County Supplemental Br. at 21. Ingham
County’s brief also asserts—as did counsel for MDHHS
at oral argument, see Recording of Oral Arg. at
35:58–39:16—that Monclova is wrongly decided and
null because it purportedly conflicts with our earlier
decision in Commonwealth v. Beshear. See Ingham
County Supplemental Br. at 16 (“The Panel’s decision
correctly provides that if forced to choose between
conflicting precedent, [courts] are required to follow the
first one, which in this case is Beshear.”). Given these
persistent defenses, neither entity has given us any
reason to believe that they have acquiesced and seen
the error of their ways. In their ideal world, we would
hold that their orders were perfectly constitutional, and
thus that they are free once again to criminalize
Resurrection School’s face-to-face instruction.
That all brings me to the majority’s speculation
about how defendants’ “political accountability” would
surely prevent reimposition of a mask mandate. See
Majority Op. at 5. That is a curious argument. I had
always thought that defendants’ imposition and
rescission of the mask mandate was based upon
App. 47
biological science rather than political science. I also
would have thought that insulation from political
accountability was the very reason the Michigan
legislature, through an extensive delegation,
established an independent public-health bureaucracy
full of advisors removable “for good cause”—so that it
could institute measures unpopular but deemed
necessary to safeguard the public health without fear
of democratic reprisal. See M.C.L. 333.2208(3); see
generally Humphrey’s Ex’r v. United States, 295 U.S.
602 (1935). Perhaps MDHHS is immune from the
ordinary principles of administrative law, but why that
might be so the majority never says.
The majority moreover offers no empirical support
for its “political accountability” claim. If anything,
polling suggests that the Michigan public might
actually favor reimposition of a mask mandate. See,
e.g., Ken Haddad, “Poll: WhereMichigan voters stand
on mask mandates, COVID vaccines requirements,”
Click on Detroit (Jan. 12, 2022), https://perma.cc/BU846UP8 (explaining that “63% of [Michigan] voters
support a requirement for people to wear masks in
indoor places[.]”). In any event, how disquieting for
Resurrection School that its religious free exercise
should hinge upon the caprice of the electorate. See
Barnette, 319 U.S. at 638 (“The very purpose of a Bill of
Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them
beyond the reach of majorities and officials[.]”).
App. 48
2. Claim Two: The Supposed Irrelevance of the
Ingham County Orders to this Proceeding
As noted above, one of the foundational assumptions
underlying the majority’s mootness analysis is that
MDHHS’s order was “repealed almost a year ago.”
Majority Op. at 2. One would have to be forgiven, based
on that comment, for believing that Resurrection
School thus has not been subjected to a mask mandate
since June 2021. But that would be false. Resurrection
School was actually subject to the mandate until
February 2022, shortly before this case was argued.
This latter mandate was the creation of Ingham
County, rather than a direct imposition from MDHHS
itself. But just like its predecessor from MDHHS, this
new mandate illegalized Resurrection School’s face-toface instruction as it simultaneously exempted
“restaurants, hair and nail salons, performance venues,
gyms, office buildings, indoor sports venues, [and]
casinos.” Opinion & Order at 16, R. 77. And, it turns
out, Ingham County’s decision to impose such a
measure was deeply intertwined with MDHHS’s own
views on the necessity of masking.
The majority’s contention to the contrary rests on
its mere ipse dixit that the two mandates have nothing
to do with each other, and thus that Ingham County’s
behavior is categorically irrelevant to its mootness
analysis. Majority Op. at 6.7 I disagree with the
7
Inversely, because the majority insists that MDHHS and Ingham
County have nothing to do with each other, today’s opinion has
said nothing about whether that portion of Resurrection School’s
suit against the latter is moot. Resurrection School is thus free to
continue pursuing relief against Ingham County.
App. 49
majority, of course, but so does Ingham County. When
it initially imposed its mask mandate in September
2021, it explicitly cited MDHHS’s August 13, 2021,
guidance “stating that all schools should require
universal indoor masking”—i.e., sans religious
exemption—as a rationale for its own imposition of
indoor masking. See “Emergency Order (Ingham
2021-2) for Control of Epidemic,” Ingham Cnty. Health
Dep’t (Sept. 2, 2021), https://perma.cc/K25B-URTF.
And what about when Ingham County rescinded its
order this February? As it explained to the district
court, “because MDHHS guidance regarding masks has
changed, Ingham County has shifted its policies
accordingly.” Opinion & Order at 6, R. 77 (emphasis
added); see also 2/17/2022 Transcript at 14:4-12, 21:1625, R. 80 (explaining that Ingham County both imposed
and rescinded its “universal masking” mandates in
schools “[b]ased on” and “in compliance with guidance”
from MDHHS).
As Resurrection School points out in its briefs before
us, it is a basic principle of equity jurisprudence that a
defendant bound by an injunction cannot escape the
decree by enlisting a third party to do his bidding.
Indeed, Federal Rule of Civil Procedure 65(d) provides
that even a nonparty with notice of a decree can be held
in contempt for working in “active concert or
participation” with a party to violate the terms of the
injunction. Fed. R. Civ. P. 65(d)(2)(C). As the Supreme
Court has explained, this principle prevents
“nullif[ication of] a decree by carrying out prohibited
acts through aiders and abettors.” Regal Knitwear Co.
v. NLRB, 324 U.S. 9, 14 (1945); see also McGrawEdison Co. v. Preformed Line Prods. Co., 362 F.2d 339,
App. 50
344 (9th Cir. 1966) (“Nonparties may be found in
contempt of an injunction provided that they have
actual notice of the injunction and aid or abet its
violation.”).
The majority’s unexplained refusal to consider
Ingham County’s conceded cooperation with MDHHS
to impose a mask mandate thus creates an illogical
disparity. Rule 65 provides that even a nonparty acting
in concert or participation with a defendant-party may
be jailed for contempt of a decree. McGraw-Edison Co.,
362 F.2d at 344. Yet in the majority’s view, when a
party to the suit (Ingham County) acts in concert with
another party to the suit (MDHHS) to carry out an
illegal act, that fact is categorically insufficient to show
that a suit against the latter is even justiciable. See
Majority Op. at 6.
Contrary to what the majority implies, its creation
of that mismatch finds no support in the cited pages or
footnote from our decision in Chirco v. Gateway Oaks.
But see id. (citing Chirco v. Gateway Oaks, L.L.C., 384
F.3d 307, 309–10, 310 n.1 (6th Cir. 2004)). If anything,
Chirco actually supports justiciability in this case.
Chirco involved a businessman, Chirco, who sued a
condominium developer, Gateway Oaks, for copyright
infringement, claiming that condos Gateway Oaks had
constructed were substantially similar to condos that
Chirco himself had designed. Chirco, 384 F.3d at 308.
He also filed a notice of lis pendens on the condos, the
point of which was to inform potential buyers that an
action was pending against the property. Id. The
district court canceled the lis pendens, however,
reasoning that the copyright suit “did not affect the
App. 51
title to the Gateway Oaks condominiums.” Id. Chirco
appealed the cancellation. Id. Yet as the suit proceeded,
Gateway Oaks sold off all the condos to third parties.
Id. at 309. Chirco conceded, therefore, “that any
decision by [the Sixth Circuit] would have [had] no
impact on the instant case against Gateway Oaks.” Id.
But he asked us to adjudicate the validity of the
cancellation anyway, as a lis pendens dispute could
potentially recur between Chirco and some other party
not before the court. Id. We refused to do so, however,
applying the basic principle that the capable-ofrepetition doctrine requires that the dispute be capable
of repetition between the same parties. Id. at 309–10
(citing Norman v. Reed, 502 U.S. 279, 288 (1992)).
That the majority views Chirco (or the same-party
requirement more generally) as defeating the relevance
of Ingham County’s behavior to the mootness analysis
here betrays a basic misunderstanding of Resurrection
School’s argument. Resurrection School is not seeking
an abstract declaration that MDHHS’s mandate was
illegal solely because it might later deploy that holding
against some unknown party in some future, collateral
proceeding—as Chirco might have done against some
unknown third party not before the court. Instead, it
wants a ruling that MDHHS itself must stop
instructing Ingham County to impose “universal indoor
masking” sans religious exemption upon the School.
See “Emergency Order (Ingham 2021-2) for Control of
Epidemic,” supra. And given that Ingham County
“shift[s] its policies accordingly” based on what
MDHHS tells it to do, Opinion & Order at 6, R. 77,
Resurrection School plainly has a justiciable interest in
securing a decree against MDHHS itself. What it fears,
App. 52
in other words, is not merely a repetition of Ingham
County’s behavior, but of MDHHS’s as well, given
MDHHS’s evident control over Ingham County’s
decisions.8
3. Claim Three: No Reasonable Officer Would
Reinstitute an MDHHS-Style Order after
Tandon v. Newsom
The majority next asserts that no reasonable officer
would reimpose an MDHHS-style mandate given the
now-“substantially developed caselaw” on general
applicability; namely, the Supreme Court’s decision in
Tandon. Majority Op. at 7, id. at 5–6 (citing Tandon,
141 S. Ct. at 1294). Yet the majority’s bare assertion
gives me no confidence that MDHHS and Ingham
County share that understanding of the relevant
precedent. MDHHS itself kept its contested orders in
place for months after Tandon came down. Ingham
County likewise promulgated its own orders
disparately burdening Resurrection School’s religious
free exercise well after Tandon. For that matter, the
only reason we are even in an en banc proceeding right
now is because the panel majority held that MDHHS’s
8
That Ingham County may once again “shift[ ] its policies
accordingly” based on new masking guidance from MDHHS,
Opinion & Order at 6, R. 77, is bolstered by MDHHS’s explicit
acknowledgment on its own website that it may institute new
masking measures in response to “future phases” of the pandemic.
See, e.g., “Updated Masking Guidance for Michiganders,” Mich.
Dep’t of Health & Hum. Servs. (Feb. 16, 2022), https://perma.cc/
4ALG-U53H (“Recommendations regarding masking may change
as conditions evolve—such changes could include the presence of
a new variant that increases the risk to the public, or an increased
number of cases that strains the healthcare system.”).
App. 53
orders were lawful even under Tandon. See
Resurrection Sch., 11 F.4th at 457 (“Tandon v. Newsom
does not compel a different comparator.” (citation
omitted)). And both MDHHS and Ingham County
continue to insist that their orders pose no First
Amendment concern, even under Tandon. See supra
pages 30–31; see also 2/17/22 Transcript at 22:9-20, R.
80 (contending that Ingham County’s orders are
generally applicable even under Tandon and Monclova
and that, in any event, they could satisfy strict
scrutiny). It is simply not credible to claim that Tandon
itself obviated the possibility that an MDHHS-style
order could return.
4. Claim Four: COVID has Abated Such That
There is “No Reasonable Possibility”
Defendants Could Reimpose a Mask
Mandate
The majority last asserts that conditions have so
improved regarding COVID-19 that there is “no
reasonable possibility” defendants could reinstitute a
mask mandate. Majority Op. at 7. Much like the
majority’s speculation about defendants’ “political
accountability,” however, this intuition about a rapidly
evolving public-health situation—derived from a yearold record assembled in a preliminary-injunction
proceeding—has scant empirical support. Indeed, in
the weeks after our oral argument for this case, the
following institutions have either reinstated or
extended their mask mandates in light of new surges
of COVID-19:
App. 54
! Columbia University
" See “As of April 11, Non-Cloth Masks
are Mandatory in Classrooms,”
COVID-19 Resource Guide for the
Columbia Community (Apr. 10, 2020),
https://perma.cc/P9TK-ACJT.
! Georgetown University
" See Lauren Lumpkin, “Georgetown,
Johns Hopkins temporarily restore
some covid measures,” Wash. Post
(Apr. 7, 2022), https://perma.cc/Z39F27V6.
! Johns Hopkins University
" See id.
! The City of Philadelphia
" See Elizabeth Wolfe, “Philadelphia
will reinstate its indoor mask mandate
as cases rise,” CNN (Apr. 11, 2022),
https://perma.cc/76XM-QHKK?type=i
mage.
! American University
" “Mask Guidelines: New Spring 2022
Protocols,” American University (last
visited Apr. 12, 2022), https://perm
a.cc/WR33-RSL6?type=image (“As of
April 12, 2022, masks will be required
in all campus buildings, except when
individuals are alone in private offices,
inside residence hall rooms with only
roommates, or when actively eating or
drinking.”).
! George Washington University
" See “GW to Reinstate Indoor Mask
Requirement,” The George Washington
App. 55
U niv ersity (Apr. 1 1, 2 0 2 2 ),
https://perma.cc/4SPU-HVEQ.
! The University of Connecticut
" See “UConn Reinstituting mask
requirement as COVID positivity rates
rise,” News 8 wtnh.com (Apr. 15,
2022), https://perma.cc/75S6-W5V9
?type=image.
! Rice University
" See Giulia Heyward, “Virus outbreaks
are pushing some U.S. universities to
reinstate mask mandates,” N. Y.
Times (Apr. 16, 2022), https://perm
a.cc/KF9N-9JRS.
! Elementary schools in (1) Ottawa,
(2) Chicago, (3) North Carolina, (4) New
Jersey, (5) Milwaukee, (6) California,
(7) Massachusetts, and (8) Pennsylvania
" See Caroline Alphonso, “Ottawa public
school board reinstates mask mandate
as other boards make new plea for
masking,” The Globe & Mail (Apr. 13,
2022), https://perma.cc/Y2QB-6EGT.
" See Kelly Davis, “Some classes at
North Side school return to mask
mandate after increase in Covid
cases,” WGN9 (Mar. 21, 2022),
https://perma.cc/2R37-NSJE.
" See Samantha Kummerer, “Masks are
back at Carrboro High School after
uptick in COVID cases connected to
prom,” ABC11 (Apr. 14, 2022),
https://perma.cc/QGL3-MU6K.
App. 56
" See Lauren McCarthy, “Two high
schools in New Jersey reinstate mask
mandates following outbreaks,” N. Y.
Times (Apr. 1, 2022), https://perma.cc/
2T5A-L8NC.
" See Elizabeth Wolfe & Andy Rose,
“Milwaukee schools reinstate mask
mandate just one day after it was
dropped,” CNN (Apr. 20, 2022),
https://perma.cc/4JEP-7WDD.
" See “Pacific Charter High School
reinstates mask mandate amid spike
in COVID cases after spring break,”
ABC7 (Apr. 20, 2022), https://perm
a.cc/V3HP-NPB5?type=image.
" See Adria Watson, “Northampton
reinstates school mask mandate
following increase in COVID-19
cases,” Boston Globe (May 11, 2022),
https://perma.cc/Q75C-H2M6.
" See “Masks go back on at Woodland
Hills High School,” Pittsburgh
Post-Gazette (May 5, 2022), https://per
ma.cc/NTF2-DABF.
" See “Pittsburgh Public Schools to
require masks again, starting Friday,”
11 News (May 12, 2022), https://perm
a.cc/84NX-ABCB.
" See “Masks Now Required at Evanston
Township High School as COVID
Cases Rise,” NBC5 Chicago (May 16,
2022), https://perma.cc/SMC2-E2NP.
App. 57
! The University of Rochester
" See “Face mask mandate reinstated on
University of Rochester campuses,”
WXXI News (Apr. 15, 2022),
https://perma.cc/R9N9-E5MS.
! The State University of New York–
Orange
" See “SUNY Orange Returns to Indoor
Masking (effective April 18, 2022),”
SUNY Orange (last visited Apr. 18,
2022), https://perma.cc/VNJ9-E3JK.
! Syracuse University
" See Jeanne Lockman, “Syracuse
University to require masks during
classes, some events as COVID cases
rise,” CNYCentral (Apr. 18, 2022),
https://perma.cc/S6X7-3C8C.
! Bowdoin College
" See “Reinstating Masks (April 12,
2022),” Bowdoin College Office of the
President (Apr. 12, 2022), https://perm
a.cc/3CN2-5ZW6?type=image.
! Rockefeller University
" See “Updates on COVID-19,” The
Rockefeller University (Apr. 15, 2022),
https://perma.cc/YD3M-K4T2.
! Los Angeles County Public Transit
" See “Los Angeles County to Issue New
COVID-19 Health Order Requiring
Masks on All Public Transit,” NBC
Los Angeles (Apr. 21, 2022),
https://perma.cc/VN7Y-Q477.
App. 58
! The Centers for Disease Control’s
(“CDC”) Airline Mask Mandate
" See Heather Murphy, “Masks Stay On:
C.D.C. Keeps the Mandate on Planes,”
N. Y. Times (Apr. 13, 2022), https://per
ma.cc/D5K7-BP36.
" Of note, after a Florida district
court enjoined enforcement of this
particular mandate, the CDC
authorized the Department of
Justice to appeal the decision after
certifying that a transportation
masking mandate remains
“necessary for the public health.”
See “CDC Statement on Masks in
Public Transportation Settings,”
CDC Newsroom (Apr. 20, 2022),
https://perma.cc/73LU-4P5K.
! San Francisco Public Transit
" See Lauren McCarthy, “The largest
transit system in the Bay Area
reinstates a mask mandate for riders,”
N. Y. Times (Apr. 28, 2022),
https://perma.cc/2HW2-ZD9F.
! Various Schools in Ingham County itself
" See Izzy Martin, “East Lansing Public
Schools reinstates mask mandate,”
WLNS6.com (May 13, 2022), https://perm
a.cc/7SAW-WBY7.
" See Sarah Lehr, “East Lansing schools
reinstate mask mandate beginning
Monday,” WKAR.org (May 13, 2022),
https://perma.cc/5SDN-V5WT.
App. 59
" Izzy Martin, “Waverly Community
Schools masking up starting Monday,”
WLNS6.com (May 18, 2022),
https://perma.cc/Z4MR-5JST.
Given these developments—which include even
reimposed mandates in Ingham County itself—I would
hesitate to categorically declare that there is “no
reasonable possibility” defendants could reinstate their
prior orders.9 I recognize, of course, that the materials
just cited are not in the present record of this case, and
so I do not fault the majority for failing to address
those specific sources. What I do fault the majority for,
however, is its decision to declare moot not merely
Resurrection School’s preliminary-injunction request—
the order actually before us—but its entire case against
MDHHS, thus forever precluding the School from
introducing those materials (or whatever else it sees
fit) into the record at the district court in a trial on the
merits. The majority’s reasoning stands in substantial
tension with circuit and Supreme Court precedent, see
infra at 40–43, and works an intolerable unfairness on
Resurrection School.
9
In addition to the masking reimpositions that we are already
seeing across the United States, there is also the reasonable
possibility of reimpositions later on, such as this fall and winter.
See, e.g., Yasmeen Abutaleb & Joel Achenbach, “Coronavirus wave
this fall could infect 100 million, administration warns,” Wash.
Post (May 6, 2022), https://perma.cc/H4SL-F8SB. For that reason
as well, Resurrection School plainly has a justiciable interest in
securing long-term relief through a permanent injunction or
declaratory judgment.
App. 60
What we should have done instead was vacate the
district court’s denial of the preliminary injunction,
which was based on an erroneous understanding of the
First Amendment. We then should have remanded both
that order and the case itself to the district court for a
fresh analysis of the preliminary-injunction factors—an
analysis the district court has never properly
conducted. See Order at 7, R. 24. Because there is a
“reasonable possibility” that MDHHS or Ingham
County (at the former’s behest) could reinstitute the
challenged orders either during the pendency of the
litigation—which itself could take yet additional
months—or after it, plaintiffs retain a live interest in
seeking both preliminary and permanent relief.
But let’s pretend that I’m wrong about all that.
Pretend the present record on interlocutory appeal
really does give rise to justiciability concerns. Would it
thereby follow that the appropriate course was the
majority’s here—to deem the entire case moot and
make no meaningful attempt to clarify the merits of the
relevant free-exercise jurisprudence? Certainly not. As
it turns out, there was an alternative path available to
us, a path not taken, through which we could have
decided this appeal that would have simultaneously
respected the majority’s apparent justiciability qualms
while also doing much good to clarify the free-exercise
law of our circuit. In the section that follows, therefore,
I will briefly describe that approach—and why its
apparent repudiation further underscores the
indefensible nature of today’s result.
App. 61
B. Unwinding the Majority’s Conflation of the
Preliminary-Injunction Proceeding and the
Permanent-Injunction Proceeding
Today’s decision will have the practical effect of a
final judgment, given that it brings an end to
Resurrection School’s suit against MDHHS. Strictly
speaking, however, we are not evaluating a final
decision of the district court. This case comes to us
instead on the denial of a preliminary injunction, and
so is an interlocutory appeal under 28 U.S.C. § 1292.
See 28 U.S.C. § 1292(a)(1). Thus, what we are doing (or,
rather, should have been doing) is predicting whether
Resurrection School would likely succeed on the merits
of its claims at trial, where it then would have sought
a permanent injunction and declaratory judgment. See
Benisek v. Lamone, 138 S. Ct. 1942, 1943–44 (2018); see
also Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–96
(1981). The distinction between review of a preliminary
injunction and a permanent injunction is critical here,
in my view, for two reasons.
First, the litigation of a preliminary-injunction
request in the district court involves a rapid,
abbreviated proceeding in which the district court itself
attempts to predict whether the plaintiff is likely to
succeed at trial. See Camenisch, 451 U.S. at 395 (noting
that a preliminary-injunction proceeding involves
procedures “less formal” and evidence “less complete”
than a trial on the merits).10 The decision is fast paced
because its purpose is simply to protect plaintiffs’
10
For instance, the district court denied the preliminary-injunction
request here without even holding a hearing.
App. 62
rights during the litigation, up to and until the district
court can rule on the merits of the permanent
injunction and declaratory judgment. Id. (noting the
relative “haste” of such preliminary proceedings). For
this reason as well, the district court’s determinations
at the preliminary-injunction stage have no preclusive
effect upon its determinations at the merits stage
regarding the permanent injunction and declaratory
judgment. Id.; see also Gjertsen v. Bd. of Election
Comm’rs of City of Chicago, 751 F.2d 199, 202 (7th Cir.
1984) (“A preliminary injunction has no preclusive
effect—no formal effect at all—on the judge’s decision
whether to issue a permanent injunction.”). So the
irony here is that we are declaring plaintiffs’ merits
challenge moot, and thus their entire case against
MDHHS extinguished, based on an abbreviated and
outdated record assembled at a preliminary and nonpreclusive proceeding held over a year ago.
Second, and more important, is that the majority’s
decision to declare the entire case against MDHHS
moot—rather than simply deciding the preliminaryinjunction appeal—has stripped us of a valuable
opportunity to clarify the law of our circuit. What the
majority should have done, instead, is rule solely on the
interlocutory order before us. That would have put us
in the predictive posture characteristic of preliminary
injunctions that I mentioned above. In the course of
deciding whether to affirm the denial of preliminary
relief, therefore, we could have ruled on whether
Resurrection School was likely to illustrate
justiciability at the merits proceeding and, even if we
thought that showing deficient, whether it was likely to
succeed on the merits of its First Amendment claim as
App. 63
well. That is because, as we recently explained, Article
III courts sitting in such a “predictive” posture may
permissibly opine on both justiciability and the merits
(technically, likely justiciability and likely merits), even
if they believe the former likely lacking. See Arizona v.
Biden, 31 F.4th 469, 479 (6th Cir. 2022) (“We address
these [merits] questions despite our initial doubts
about standing and reviewability given the predictive
nature of the likelihood-of-success inquiry at this early
stage.”).11
Thus, we could haveexplained that Resurrection
School was likely to succeed on the merits of its
free-exercise claim, given that Tandon overruled
Beshear. But then our court—presumably a different
subset of it, as I would not have agreed on this point—
also could have explained that Resurrection School was
unlikely to establish justiciability. So we could have
affirmed denial of preliminary relief on that basis, and
yet “withh[e]ld judgment” on whether the entire case
was moot, see Ramsek v. Beshear, 989 F.3d 494, 500
11
Arizona involved a request for a stay of a preliminary injunction
rather than a request for a preliminary injunction itself, 31 F.4th
at 472, but this difference is immaterial for present purposes, as
the predictive posture of each, and the factors used to evaluate
each, are the same. See, e.g., Nken v. Holder, 556 U.S. 418, 434
(2009) (noting the substantial overlap of the stay and preliminaryinjunction tests because “similar concerns arise whenever a court
order may allow or disallow anticipated action before the legality
of that action has been conclusively determined.”); see also Bristol
Regional Women’s Ctr., P.C. v. Slatery, 988 F.3d 329, 344 n.1 (6th
Cir. 2021) (Thapar, J., dissenting) (“[T]here is no material
difference between a preliminary injunction case and a stay case:
Courts apply the same test in both.”), vacated on other grounds 994
F.3d 774 (6th Cir. 2021).
App. 64
(6th Cir. 2021), given that the case’s justiciability
hinges on rapidly evolving factual circumstances that
plaintiffs should have had a fair shot at introducing
into the record. We then could have remanded the case
so the district court could have taken updated
information about COVID-19 and made a ruling on the
justiciability of the permanent injunction and
declaratory judgment in a trial on the merits.12
Such an opinion, even though delivered in a
preliminary posture, would have provided valuable
guidance to litigants in our circuit about the proper
scope of the First Amendment—just as the Supreme
Court’s orders-docket opinions have done on the same
topic. See, e.g., Tandon, 141 S. Ct. at 1294. And that
approach would have been much fairer to plaintiffs as
well, giving them a procedural window to introduce
new evidence about what continues to be a rapidly
evolving situation. See, e.g., Ramsek, 989 F.3d at 500
(dismissing an appeal as moot but “withhold[ing]
judgment on whether the case as a whole is moot” and
remanding for the district court to evaluate additional
theories of injury); see also Reclaim Idaho v. Little, 826
F. App’x 592, 595 (9th Cir. 2020) (remanding a case in
which the mootness issue arose in the first instance on
appeal “to allow the parties to develop the record and
brief the district court on whether th[e] controversy
[was] ‘capable of repetition, yet evading review.’”).
12
And, because this case is not moot, the district court presumably
would have ruled on the merits of Resurrection School’s requests
for declaratory and permanent-injunctive relief as well.
App. 65
Instead, today’s majority has done the very
opposite. It makes not a prediction about justiciability
in the context of an interlocutory order, but instead an
affirmative declaration that there is no case or
controversy at all between Resurrection School and
MDHHS. See Majority Op. at 7. As a result, it has
necessarily said nothing about the merits of the First
Amendment challenge underlying today’s dispute. Steel
Co., 523 U.S. at 101–02. So Resurrection School is now
stripped of its right to make its case for permanent
relief in the district court, while similar litigants
throughout our circuit will be left uncertain about what
standard governs the Free Exercise Clause. Prudence,
in my view, would have dictated a different course.
*
*
*
I hope that I am eventually proven wrong. I would
be quite pleased if COVID-19 were to permanently
enter humanity’s rear-view mirror. But the point is
that I—just like the majority—have no basis upon
which to proclaim that my hopes today will surely
become realities tomorrow. Because I would hold that
the present controversy is not moot, I respectfully
dissent.
App. 66
APPENDIX B
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 20-2256
[Filed: August 23, 2021]
__________________________________________
RESURRECTION SCHOOL; CHRISTOPHER
)
MIANECKI, individually and as next friend
)
on behalf of his minor children C.M., Z.M., )
and N.M.; STEPHANIE SMITH, individually
)
and as next friend on behalf of her
)
minor child F.S.,
)
Plaintiffs-Appellants,
)
)
v.
)
)
ELIZABETH HERTEL, in her official
)
capacity as the Director of the Michigan
)
Department of Health and Human
)
Services; DANA NESSEL, in her official
)
capacity as Attorney General of the
)
State of Michigan; LINDA VAIL, in her
)
official capacity as the Health Officer of
)
App. 67
Ingham County; CAROL A. SIEMON, in
)
her official capacity as the Ingham
)
County Prosecuting Attorney,
)
Defendants-Appellees.
)
__________________________________________)
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cv-01016—Paul Lewis Maloney, District
Judge.
Argued: July 21, 2021
Decided and Filed: August 23, 2021
Before: SILER, MOORE, and DONALD, Circuit
Judges.
_________________
COUNSEL
ARGUED: Erin Elizabeth Mersino, GREAT LAKES
JUSTICE CENTER, Lansing, Michigan, for Appellants.
Daniel J. Ping, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for
Appellee Elizabeth Hertel. Ann M. Sherman, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee Dana Nessel. ON
BRIEF: Erin Elizabeth Mersino, GREAT LAKES
JUSTICE CENTER, Lansing, Michigan, Robert J.
Muise, AMERICAN FREEDOM LAW CENTER, Ann
Arbor, Michigan, for Appellants. Daniel J. Ping, Joseph
T. Froehlich, Ann M. Sherman, Rebecca A. Berels,
OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for State of Michigan
Appellees. Bonnie G. Toskey, Sarah K. Osburn, COHL,
App. 68
STOKER & TOSKEY, P.C., Lansing, Michigan, for
Appellees Linda Vail and Carol Siemon. Alex J.
Luchenitser, Richard B. Katskee, AMERICANS
UNITED FOR SEPARATION OF CHURCH AND
STATE, Washington, D.C., for Amici Curiae.
MOORE, J., delivered the opinion of the court in
which DONALD, J., joined, and SILER, J., joined in
part. SILER, J. (pg. 31), delivered a separate opinion
concurring in part and dissenting in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. To
control the spread of COVID-19, the Michigan
Department of Health and Human Services
(“MDHHS”) required 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. Plaintiffs Resurrection School, a Catholic
elementary school in Lansing, Michigan, and two
parents with children enrolled at the school, on behalf
of themselves and their minor children, challenge the
mask requirement as a violation of their free exercise
of religion, equal protection, and substantive due
process rights. Since Plaintiffs filed suit, MDHHS has
rescinded almost all COVID-19 pandemic emergency
orders, including the challenged mask requirement. We
hold that Plaintiffs’ challenge to the mask requirement
is not moot, and we AFFIRM the district court’s denial
of Plaintiffs’ motion for a preliminary injunction on the
merits.
App. 69
I. BACKGROUND
A. COVID-19 in Michigan
COVID-19 is a novel respiratory infection first
discovered in December 2019. Since then, 925,377
Michigan residents have been diagnosed with
COVID-19 and 20,076 Michigan residents have died
from the disease. Mich. COVID-19 Dashboard,
Cumulative Confirmed Cases and Deaths Among
Confirmed Cases, https://www.michigan.gov/coron
avirus/0,9753,7-406-98163_98173---,00.html (accessed
Aug. 19, 2021). Although young children have been
largely spared the worst of the disease’s impact, six
children ages 5–14 have died of COVID-19 in Michigan,
Number of COVID-19, Pneumonia and Influenza
Deaths by Age of Death, Michigan Occur[r]ences,
MDHHS, https://www.mdch.state.mi.us/osr/Provisio
nal/CvdTable2.asp (accessed Aug. 19, 2021), and 1,280
children ages 0-17 have been hospitalized with
COVID-19, COVID Data Tracker, CDC, https://covi
d.cdc.gov/covid-data-tracker/#new-hospital-admissions
(accessed Aug. 19, 2021). One-hundred-and-sixty-one
children in Michigan who recovered from COVID-19
went on to develop Multisystem Inflammatory
Syndrome in Children (“MIS-C”), a condition causing
inflammation and damage to organs. MIS-C Data and
Reporting, MDHHS, https://www.michigan.gov/
coronavirus/0,9753,7-406-98163_98173_104661---,
00.html (accessed Aug. 19, 2021); see also R. 16-2 (Vail
Aff. ¶ 7) (Page ID #538) (describing MIS-C and other
long-term complications of COVID-19 infection).
Children infected with COVID-19 can spread the
disease to their parents and grandparents, teachers
App. 70
and school staff, and other medically vulnerable
Michiganders.
COVID-19 primarily spreads through airborne
particles that accumulate in enclosed spaces with
inadequate ventilation, respiratory droplets produced
when a person coughs, sneezes, or talks, and
occasionally through contact with objects contaminated
with the virus. How COVID-19 Spreads, CDC (July 14,
2021), https://www.cdc.gov/coronavirus/2019-ncov/pre
vent-getting-sick/how-covid-spreads.html. Individuals
infected with COVID-19 can spread the disease while
asymptomatic and pre-symptomatic, and many
individuals infected with COVID-19 experience mild
symptoms. See R. 14-6 Ex. 5 (Nathan Furukawa et al.,
Evidence Supporting Transmission of Severe Acute
Respiratory Syndrome Coronavirus 2 While
Presymptomatic or Asymptomatic, 26 Emerg. Infect.
Dis. (July 2020)) (Page ID #297–303). These features
make COVID-19 difficult to control. As a result,
universal community use of masks is a widely accepted
method to prevent the spread of COVID-19, Science
Brief: Community Use of Cloth Masks to Control the
Spread of SARS-CoV-2, CDC (May 7, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/science/sc
ience-briefs/masking-science-sars-cov2.html, despite
Plaintiffs’ contentions to the contrary, R. 21 (First
Amended Compl. ¶¶ 75–77) (Page ID #648–49).
Since Plaintiffs filed their lawsuit in October 2020,
the Food and Drug Administration (“FDA”) has
authorized three COVID-19 vaccines for emergency
use, including one for use in persons twelve years of
age and older. Different COVID-19 Vaccines, CDC (May
App. 71
27, 2021), https://www.cdc.gov/coronavirus/2019-ncov/
vaccines/different-vaccines.html. Two of the vaccine
manufacturers, Pfizer-BioNTech and Moderna, are
testing their vaccines in children ages six months to
eleven years old. Apoorva Mandavilli, In the U.S.,
Vaccines for the Youngest Are Expected This Fall, N.Y.
TIMES (June 8, 2021), https://www.nytimes.com/202
1/06/08/health/us-vaccines-children-fall.html. Although
initially Pfizer-BioNTech hoped to apply for emergency
authorization of the vaccine for children ages five to
eleven years old in September, and Moderna sometime
in the fall, id., the FDA has requested that the two
vaccine manufacturers increase the size of their
studies, which may delay the FDA’s authorization of
the vaccine for children younger than twelve, see Sheryl
Gay Stolberg et al., At the F.D.A.’s Urging, PfizerBioNTech and Moderna Are Expanding Their Trials for
Children 5 to 11, N.Y. TIMES (July 26, 2021),
https://www.nytimes.com/2021/07/26/us/politics/fda-c
ovid-vaccine-trials-children.html.
B. Michigan’s Mask Requirement
Masks have been a significant part of Michigan’s
COVID-19 response, especially prior to the widespread
availability of safe and effective vaccines. Beginning on
April 27, 2020, Michigan required all persons “able to
medically tolerate a face covering” to wear a face
covering “when in any enclosed public space.” E.O.
2020-59 § 15(a) (Apr. 24, 2020); see also E.O. 2020-147
§ 1 (July 10, 2020) (reiterating that all persons ages
five and older must wear a face covering in public
except in limited circumstances or if medically unable
to wear a face covering).
App. 72
In preparation for the 2020–2021 school year,
Governor Gretchen Whitmer issued the MI Safe
Schools Roadmap (“Roadmap”), which outlined safety
recommendations and requirements for K–12 schools.
MI Safe Schools: Michigan’s 2020-21 Return to School
Roadmap (June 30, 2020), https://www.michigan.gov/
documents/whitmer/MI_Safe_Schools_Roadmap_FIN
AL_695392_7.pdf. The Roadmap varied its
prescriptions based on the prevalence of COVID-19 in
the community and the grade of the students. Id. at 9.1
The Roadmap strongly recommended, but did not
require, students in grades K–5 to wear a face covering
in the classroom so long as they did not come into
contact with students in another class. MI Safe
Schools, at 22; see also E.O. 2020-142 § (2)(b)(1)(E)
1
The Roadmap corresponds to the MI Safe Start Plan, which
adopted a six-phase approach to reopening the state based on the
prevalence of disease. In Phase 1, a region is experiencing
“[i]ncreasing number of new cases every day, likely to overwhelm
the health system” and only critical infrastructure is permitted to
remain open, whereas in Phase 6, the region has community
immunity sufficient to minimize community spread and
restrictions are lifted. MI Safe Start: A Plan to Re-engage
Michigan’s Economy, at 2 (May 7, 2020), https://www.michig
an.gov/documents/whitmer/MI_SAFE_START_PLAN_689875_7.
pdf. When a region is in at least Phase 4, the Roadmap permitted
schools to reopen for in-person learning with certain safety
protocols. MI Safe Schools, at 21. In practice, Michigan treated
in-person K–12 instruction more permissively than the terms of
the MI Safe Start Plan and the Roadmap. The MI Safe Start plan
permitted schools to reopen for in-person instruction only in
Phases 5 and 6, MI Safe Start, at 2, and MDHHS permitted K–8
schools to remain open for in-person instruction even when all
regions were at the highest risk level, 11/15/20 MDHHS Order.
App. 73
(June 30, 2020) (incorporating requirement into an
executive order).
On September 25, 2020, citing “the higher incidence
of [COVID-19] cases among children in recent months,”
“the clear effectiveness of masking as mitigation
strategy,” and the “absence of a widespread vaccine,”
Whitmer issued an executive order mandating that
children in grades K-5 also wear a face covering in
classrooms. E.O. 2020-185 § 1 (Sept. 25, 2020). A few
days later, the Michigan Supreme Court concluded that
the 1945 law under which Whitmer had been issuing
executive orders regarding the COVID-19 pandemic
was an improper delegation of legislative power in
violation of the Michigan Constitution. See In re
Certified Questions from United States Dist. Ct., W.
Dist. of Michigan, S. Div., 958 N.W.2d 1 (Mich. 2020).
MDHHS then issued an order reinstating the
requirement that children in grades K–5 wear a face
covering in the classroom. 10/05/20 MDHHS Order
§§ 2–3. MDHHS issued another near-identical order on
October 9, 2020. 10/09/20 MDHHS Order. The Ingham
County Health Department, which includes Lansing,
also issued its own emergency order requiring all
persons who leave their home or place of residence to
wear a face covering, including children in grades K-5.
Ingham Cnty. E.O. 2020-21 (Oct. 4, 2020); see also R.
16-2 Ex B. (Vail Aff. ¶¶ 13–22) (Page ID #539–41)
(describing the Ingham County order). On October 23,
2020, the Ingham County Health Department
rescinded its order after it confirmed that the MDHHS
Orders included all requirements of the county order.
Id. ¶ 23 (Page ID #541).
App. 74
Since then, MDHHS has issued several orders
slightly changing the circumstances for when a mask
is required. The March 2, 2021 Order, which is the
focus of the parties’ briefing,2 provides in relevant part:
7. Face mask requirement at gatherings.
(a)
(b)
(c)
2
All persons participating in gatherings
are required to wear a face mask.
As a condition of gathering for the
purpose of transportation,
transportation providers must require
all staff and patrons to use face
masks, and must enforce physical
distancing among all patrons to the
extent feasible.
Except as provided elsewhere in this
order, a person responsible for a
business, store, office, government
office, school, organized event, or other
operation, or an agent of such person,
must prohibit gatherings of any kind
unless the person requires individuals
in such gatherings (including
employees) to wear a face mask, and
Defendants acknowledge that MDHHS has made “minor
alterations” to the exceptions between the 10/09/20 MDHHS Order
and the 03/02/21 MDHHS Order, and thus, refer to “the orders”
collectively. Hertel & Nessel Br. at 8 n.6. For instance, during the
winter surge in COVID-19 cases, MDHHS prohibited any
non-essential personal care services that required removal of face
masks, most organized sports, and indoor dining. 11/15/20
MDHHS Order. Accordingly, we use “MDHHS Orders” to refer to
the orders leading up to the rescission of the mask requirement.
App. 75
(d)
denies entry or service to all persons
refusing to wear face masks while
gathered.
A person responsible for a business,
store, office, government office, school,
organized event, or other operation, or
an agent of such person, may not
assume that someone who enters the
facility without a face mask falls
within one of the exceptions specified
in section 8 of this order, including the
exception for individuals who cannot
medically tolerate a face mask. An
individual’s verbal representation that
they are not wearing a face mask
because they fall within a specified
exception, however, may be accepted.
...
8. Exceptions to face mask requirements.
Although a face mask is strongly encouraged
even for individuals not required to wear one
(except for children under the age of 2), the
requirement to wear a face mask in
gatherings as required by this order does not
apply to individuals who:
(a)
Are younger than 5 years old, outside
of a child care organization or camp
setting (which are subject to
requirements set out in section 7(e));
(b)
Cannot medically tolerate a face mask;
(c)
Are eating or drinking while seated at
a food service establishment or at a
private residence;
App. 76
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
Are exercising outdoors and able to
consistently maintain 6 feet of
distance from others;
Are swimming;
Are receiving a medical or personal
care service for which removal of the
face mask is necessary;
Are asked to temporarily remove a
face mask for identification purposes;
Are communicating with someone who
is deaf, deafblind, or hard of hearing
and whose ability to see the mouth is
essential to communication;
Are actively engaged in a public safety
role, including but not limited to law
enfo rcem ent , fi refighters, or
emergency medical personnel, and
where wearing a face mask would
seriously interfere in the performance
of their public safety responsibilities;
Are engaging in a religious service;
Are giving a speech for broadcast or to
an audience, provided that the
audience is at least 12 feet away from
the speaker; or
Are participating in a testing program
specified in MDHHS’s document
entitled Guidance for Athletics issued
February 7, 2021, and are engaged in
practice or competition where the
wearing of a mask would be unsafe.
03/02/21 MDHHS Order. In accordance with Mich.
Comp. Laws § 333.2261, “violation of this order is a
App. 77
misdemeanor punishable by imprisonment for not more
than 6 months, or a fine of not more than $200.00, or
both.” Id. § 10(e). Further, MDHHS promulgated
emergency rules stating that a violation of the MDHHS
Orders carries “a penalty of up to $1,000 for each
violation or day that a violation continues.” MDHHS
Emergency Rules (Oct. 20, 2020).
On May 14, 2021, in response to CDC guidance that
fully vaccinated persons no longer need to wear a mask
in most settings, MDHHS added fully vaccinated
persons to the list of exceptions to the mask
requirement. 05/14/2021 MDHHS Order. One month
later, MDHHS rescinded almost all COVID-19
pandemic emergency orders, including the challenged
mask requirement, because of the reduction in
COVID-19 test positivity rates, case rates,
hospitalizations, and deaths, the availability of
COVID-19 vaccines, the availability of therapeutics,
such as monoclonal antibodies, and warmer weather.
06/17/21 MDHHS Order. The 06/17/21 MDHHS Order
became effective June 22, 2021. Id.
MDHHS’s rescission coincided with summer break,
which leaves open the question of what restrictions
MDHHS may impose for the 2021–2022 school year.
MDHHS’s interim guidance for schools recommends
that schools use multiple prevention strategies,
including face masks, to limit transmission in school.
MDHHS, Interim Recommendations for Operating
Schools Safely When There Is COVID-19 Community
Transmission (June 25, 2021), https://www.michi
gan.gov/documents/coronavirus/COVID-19_Guidance_
for_Operating_ Schools_Safely_728838_7.pdf.
App. 78
Other public-health authorities have weighed in on
mitigation measures for in-person education for the
2021–22 school year. In consideration of new evidence
regarding the B.1.617.2 (Delta) coronavirus variant,
the CDC’s guidance for K–12 schools now recommends
that all persons wear a mask indoors at school
regardless of vaccination status. Guidance for
COVID-19 Prevention in K-12 Schools, CDC (updated
Aug. 5, 2021), https://www.cdc.gov/coronavirus/2019ncov/community/schools-childcare/k-12-guidance.html.
The American Academy of Pediatrics (“AAP”) also
recommends that all students and staff—regardless of
whether they are fully vaccinated against COVID-19—
wear a mask indoors at school as a “necessary
measure[] to limit the community spread of
SARS-CoV-2 to ensure schools can remain open and
safe for all students.” COVID-19 Guidance for Safe
Schools, Am. Acad. Pediatrics (last updated July 18,
2021), available at https://services.aap.org/en/pages/
2019-novel-coronavirus-covid-19-infections/clinicalguidance/covid-19-planning-considerations-return-toin-person-education-in-schools/. Masks, according to
the AAP, are part of a “multi-pronged, layered
approach” that together “will make in-person learning
safe and possible.” Id.
Some states and localities have adopted universal
mask requirements in line with public health
authorities’ recommendations. See, e.g., Kalamazoo
Cnty. Health Dep’t 08/18/2021 Order (requiring that
children in grades K–6 and those providing services to
children in grades K–16 wear a mask in school
settings); Ky. E.O. 2021-585 (Aug. 10, 2021); Cal. Dep’t
Pub. Health, COVID-19 Public Health Guidance for
App. 79
K-12 Schools in California, 2021-22 School Year (July
12, 2021), https://www.cdph.ca.gov/Programs/CID/
DCDC/Pages/COVID-19/K-12-Guidance-2021-22-Sc
hool-Year.aspx (requiring that all persons, including
children in grades K–5, wear masks at school); K-12
School Updates, Del. Div. Pub. Health (May 12, 2021),
https://coronavirus.delaware.gov/schools-and-students/
school-updates/ (same). Other states have
recommended, but not required, students in grades
K–12 to wear masks in school. See, e.g., Ohio Dep’t
Pub. Health (July 26, 2021), https://coronavir
us.ohio.gov/static/responsible/schools/K-12-Schools-G
uidance.pdf.
Despite the CDC’s and the AAP’s guidance and the
decisions of other states to impose mask requirements
in school, Whitmer has stated that she does not expect
MDHHS to issue a mask requirement or other
pandemic orders “in the near future and maybe not
ever.” Dave Boucher & Kristen Jordan Shamus,
Whitmer: No New State Mask Rule Expected Despite
Updated CDC Guidance, DET. FREE PRESS (July 27,
2021), https://www.freep.com/story/news/health/
2021/07/27/whitmer-no-new-state-mask-rule-despiteupdated-cdc-guidance/5385179001/. Hertel has
indicated that she “expect[s] and encourage[s] schools
when they go back to have mask requirements for kids
younger than 12 and those who haven’t been
vaccinated.” MDHHS Director: State Urging Schools to
Have Mask Mandates for Kids Under 12, Those Not
Vaccinated, WXYZ-Det. (July 22, 2021),
https://www.wxyz.com/news/coronavirus/mdhhs-direc
tor-state-urging-schools-to-have-mask-mandates-forkids-under-12-those-not-vaccinated.
App. 80
C. Plaintiffs’ Lawsuit
On October 22, 2020, Plaintiffs filed a complaint in
the U.S. District Court for the Western District of
Michigan. Plaintiffs allege that the MDHHS Orders
violate their rights to free exercise, equal protection,
substantive due process, freedom of speech, and
freedom of association. R. 1 (Compl. ¶¶ 135–41,
163–85) (Page ID #22–23, 27–30). In addition to these
constitutional claims, Plaintiffs argued that the
10/05/20 MDHHS Order is an unlawful exercise of
authority under Michigan law and violates the
Michigan constitution’s separation of powers and
non-delegation clauses. Id. ¶¶ 142–62 (Page ID
#24–26).
The declaration submitted by the principal of
Plaintiff Resurrection School, Jacob Allstott, attests
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.3 R. 8-1 (Allstott Decl. ¶¶ 41–58)
(Page ID #178–80). 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
3
In the 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.” R. 1 (Compl. ¶ 22) (Page ID #5).
App. 81
with “the right [as a parent] to choose a school for them
which corresponds to their own convictions.” R. 8-2
(Mianecki Decl. ¶ 59) (Page ID #190) (quoting
Catechism of the Catholic Church (“CCC”) § 2229); R.
8-3 (Smith Decl. ¶ 40) (Page ID #197–98).
Plaintiff Christopher Mianecki attests that wearing
a mask in the classroom “interferes with [his
children’s] ability to engage in their elementary school
classroom and its Catholic, religious teachings.” R. 8-2
(Mianecki Decl. ¶ 52) (Page ID #189). He provides
specific examples of how the requirement that children
wear masks in the classroom affects his three children
who are enrolled at Resurrection School. He states that
wearing a mask negatively impacts his children’s focus,
id. ¶ 33 (Page ID #187), “diverts [their] attention away
from the lesson taught in class,” id. ¶ 36 (Page ID
#187), and “negatively affect[s] [their] ability to breathe
effectively,” id. ¶ 38 (Page ID #187).
Plaintiff Stephanie Smith states that her child, F.S.,
is unable to wear a mask because he “suffer[s] from
breathing issues,” R. 8-3 (Smith Decl. ¶ 8) (Page ID
#194), and “is highly susceptible to respiratory
infections that quickly turn into additional infections
such as bronchitis,” Id. ¶ 9 (Page ID #194). Despite
Smith’s observation that F.S. is unable to wear a mask
because of his health conditions, F.S.’s pediatrician
determined that F.S. did not qualify for a medical
exemption.4 Id. ¶ 11 (Page ID #194). As a result, Smith
4
The MDHHS Orders exempted children who “[c]annot medically
tolerate a face mask” from complying with the face mask
requirements. 03/02/21 MDHHS Order § 8(b). The MDHHS Orders
App. 82
is “educating F.S. at home where he is not mandated to
wear a mask, and F.S. is on a long-term absence from
his Catholic school.” Id. ¶ 16 (Page ID #195). Smith and
her husband “cannot give F.S. the same Catholic
education that he receives at Catholic school with his
classmates.” Id. ¶ 20 (Page ID #195). 5
Plaintiffs moved for a temporary restraining order
(“TRO”) and a preliminary injunction seeking to enjoin
Defendants from enforcing the 10/05/20 MDHHS Order
against Resurrection School and the other plaintiffs. R.
7 (Pls.’ Mot. for TRO & Prelim. Inj.) (Page ID #65–70).
The district court denied Plaintiffs’ expedited ex parte
motion for a TRO, concluding that Plaintiffs could not
establish that they would experience irreparable harm
without the order because they had unreasonably
delayed in filing for emergency ex parte injunctive
clarify that “[a]n individual’s verbal representation that they are
not wearing a face mask because they fall within a specified
exception . . . may be accepted.” Id. § 7(d). Organizations may
choose to require documentation that an individual cannot
medically tolerate a face mask. See, e.g., Diocese of Lansing,
Return to Learn: Phase 4 Plan, https://www.dioceseoflansing.org/
education/phase-4-plan (requiring that students and staff obtain
a “written and signed verification by a physician” in order not to
wear a mask while at school).
5
We are troubled by public statements suggesting that
Resurrection School did not require students in grades K–5 to wear
masks during the entire school year, Cody Butler, Federal Appeals
Court to Hear Arguments over Michigan Mask Mandate,
WILX-Lansing (July 20, 2021), https://www.wilx.com/2021/07/
20/federal-appeals-court-hear-arguments-over-michigan-maskmandate/, when they have made contrary representations to this
court and the district court.
App. 83
relief.6 R. 11 (Order Denying Mot. for TRO at 3–4)
(Page ID #207–08). Defendants then filed motions to
dismiss, R. 13 (Gordon & Nessel Joint Mot. to Dismiss)
(Page ID #215–18); R. 15 (Vail & Siemon, Mot. to
Dismiss) (Page ID #475–76), and responses in
opposition to Plaintiffs’ request for a preliminary
injunction, R. 18 (Gordon & Nessel, Resp. in Opp. to
Pls.’ Mot. for TRO & Prelim. Inj.) (Page ID #565–60); R.
19 (Vail & Siemon, Resp. in Opp. to Pls.’ Mot. for TRO
& Prelim. Inj.) (Page ID #602–04).
After Defendants responded to Plaintiffs’ initial
complaint and motion for a TRO and preliminary
injunction, Plaintiffs filed an amended complaint. R. 21
(First Am. Compl.) (Page ID #636–68). The First
Amended Complaint narrowed Plaintiffs’ claims to
violations of free exercise, equal protection, and
substantive due process, and the Michigan
constitutional and state-law claims. Id. The district
court determined that the amended complaint did not
render Defendants’ motions to dismiss moot and
required Plaintiffs to respond to the motions to dismiss.
R. 23 (12/10/20 Order) (Page ID #692).
The district court denied Plaintiffs’ motion for a
preliminary injunction. Resurrection Sch. v. Gordon,
507 F. Supp. 3d 897 (W.D. Mich. 2020). Applying
Commonwealth v. Beshear, 981 F.3d 505 (6th Cir.
6
The district court noted that Whitmer and MDHHS issued
executive orders requiring individuals over the age of five to wear
a face covering indoors on July 17, 2020 and July 29, 2020
respectively, and thus, the “Plaintiffs cannot rely on the October
2, 2020 Opinion from the Michigan Supreme Court as the critical
event.” R. 11 (Order at 4) (Page ID #208).
App. 84
2020) (order), the district court determined that
Plaintiffs were unlikely to succeed on the merits of
their free-exercise challenge to the 10/05/2020 MDHHS
Order. Id. at 900–01. First, the district court found that
the 10/05/2020 MDHHS Order was neither motivated
by animus against people of faith or a specific faith nor
limited to regulating only religious activity. Id. at 901.
The district court then determined that the order was
neutral and generally applicable because it “require[d]
all individuals over the age of five to wear a face mask
in public. This requirement is in place whether they
are attending a religious school, a secular school,
running errands, or participating in some other facet of
daily life.” Id. at 901–02. The exceptions to the order
are “narrow and discrete,” and “apply to public schools
and private schools equally, and they apply to secular
schools and religious schools equally.” Id. at 902. Thus,
the district court concluded that Plaintiffs were
unlikely to succeed on the merits of their free exercise
claim. Id.
The district court dismissed Plaintiffs’ claim that
the Order violated their equal-protection rights by
permitting individuals to remove their face covering in
certain circumstances, because “[t]here is nothing in
the face-mask requirement that treats similarly
situated groups of individuals different.” Id. As for
Plaintiffs’ state-law claims, the district court declined
to address this “novel question of state law for the first
time” at this stage of litigation. Id. Although the
district court did not address Plaintiffs’ substantivedue-process claim by name, it concluded at the end that
“Plaintiffs have failed to establish a lik[e]lihood of
App. 85
success on the merits on any of their claims.” Id.
(emphasis added).
Plaintiffs timely appealed. R. 25 (Not. of Appeal)
(Page ID #700–01). Defendants move to dismiss the
appeal as moot because MDHHS has rescinded the
mask requirements. No. 20-2256, R. 34 (Hertel &
Nessel Mot. to Dismiss Appeal as Moot); No. 20-2256,
R. 37 (Siemon & Vail Mot. to Dismiss Appeal as Moot).
Plaintiffs oppose the motion. No. 20-2256, R. 38 (Pls.’
Resp. Mot. to Dismiss Appeal as Moot).
The district court had jurisdiction pursuant to 28
U.S.C. § 1331, and we have jurisdiction pursuant to 28
U.S.C. § 1292(a)(1).
II. ANALYSIS
A. Mootness
Defendants argue that we lack jurisdiction because
Plaintiffs’ claims are moot. “[A] case is moot when the
issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969). “We do not have
the power to adjudicate disputes that are moot, and
‘[t]he mootness inquiry must be made at every stage of
a case.’” Hanrahan v. Mohr, 905 F.3d 947, 960 (6th Cir.
2018) (quoting McPherson v. Mich. High Sch. Athletic
Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).
There are two relevant exceptions to the mootness
doctrine. First, voluntary cessation of the challenged
conduct does not moot a case unless it is “absolutely
clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” United States v.
Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203
App. 86
(1968). Second, a case will not become moot if the
injury is “capable of repetition, yet evading review.”
Fed. Election Comm’n v. Wis. Right to Life, Inc., 551
U.S. 449, 462 (2007). Plaintiffs argue that their case
should proceed under both exceptions, and we address
both in turn.
1. Voluntary Cessation
“A defendant’s voluntary cessation of allegedly
unlawful conduct ordinarily does not suffice to moot a
case.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 174 (2000). Where the
defendant voluntarily ceases the challenged conduct,
the defendant must establish that: “there is no
reasonable expectation that the alleged violation will
recur”; and (2) “interim relief or events have completely
and irrevocably eradicated the effects of the alleged
violation.”7 Thomas v. City of Memphis, 996 F.3d 318,
324 (6th Cir. 2021) (quoting Speech First v. Schlissel,
939 F.3d 756, 767 (6th Cir. 2019)). We caution that
“[t]he burden of demonstrating mootness ‘is a heavy
one.’” County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (quoting United States v. W. T. Grant Co., 345
U.S. 629, 633 (1953)).
We generally treat “cessation of the allegedly illegal
conduct by government officials . . . with more
solicitude . . . than similar action by private parties.”
Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)
(quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th
Cir. 1988)). “This [voluntary cessation] exception
7
The second requirement is not at issue here.
App. 87
properly applies only when a recalcitrant legislature
clearly intends to reenact the challenged regulation.”
Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th
Cir. 1997); see also Bench Billboard Co. v. City of
Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012)
(“[S]elf-correction [by government officials] provides a
secure foundation for a dismissal based on mootness so
long as it appears genuine.” (quoting Mosley, 920 F.2d
at 415)).
Plaintiffs argue, and Defendants acknowledge, that
because Defendants’ “discretion to effect the change lies
with one agency or individual, . . . significantly more
than the bare solicitude itself is necessary to show that
the voluntary cessation moots the claim,” Speech First,
939 F.3d at 768. Hertel & Nessel Reply at 4; Pls.’ Resp.
at 7. Although MDHHS, like the Defendants in Speech
First, retains the sole authority to change the mask
requirements, this case is distinguishable from Speech
First because MDHHS rescinded the challenged orders
in response to “changing circumstances.” Defendants
Hertel & Nessel offer evidence that the policy change
was genuine, including that the policy change reflects
increased access and eligibility for vaccines, that Michigan
joins other states in rescinding their mask requirements,8
8
Defendants note that as of July 2021 thirty-one states have
rescinded their mask requirements. Hertel & Nessel Reply at 5 n.4
(citing Andy Markowitz, State-by-State Guide to Face Mask
Requirements, AARP (July 12, 2021), available at https://www.aarp
.org/health/healthy-living/info2020/states-mask-mandates-coron
avirus html.). This argument cuts both ways because many states
have imposed mask requirements for K–12 instruction, see Part
I.B, and some states and localities have recently reimposed broad
indoor mask requirements following a new surge in COVID-19
App. 88
and that MDHHS rescinded almost all COVID-19
orders, not merely the orders at issue here.
Although the Supreme Court has addressed
mootness in the context of COVID-19 restrictions, the
factual circumstances are distinguishable from those
present here. In Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 68–69 (2020), the Supreme Court
held that the plaintiffs’ challenge to a state COVID-19
pandemic order limiting attendance at religious
services was not moot even though the state had
relaxed the attendance limitations in response to
declining COVID-19 cases. The Court reasoned that the
plaintiffs “remain under a constant threat” that the
state will reimpose attendance limits without notice
and “bar individuals in the affected area from
attending services before judicial relief can be
obtained.” Id. at 68. The state health department
assigned areas to different risk categories based on the
severity of the COVID-19 outbreak, and imposed
defined restrictions on activity. Id. at 66. The state
continued to use this framework, meaning that the
plaintiffs remained at risk of restrictions on attendance
at religious services if the number of COVID-19 cases,
deaths, and hospitalizations increased. Id. at 68. Here,
Defendants do not presently use a similar framework
for imposing mask requirements and other pandemic
restrictions. To the contrary, Defendants at present
have rescinded all pandemic restrictions.
cases, see Nev. Exec. Directive. 047 (July 27, 2021) (requiring mask
usage by all persons in areas with substantial or high transmission
of COVID-19); La. Procl. No. 2021-137 (Aug. 2, 2021)
(implementing a statewide mask mandate).
App. 89
Similarly, in Tandon v. Newsom, 141 S. Ct. 1294
(2021) (per curiam), the Supreme Court held that the
plaintiffs’ challenge to the state COVID-19 pandemic
order limiting gatherings, including gatherings for
at-home religious activities, was not moot even though
the defendants altered the guidance during litigation.
The Court explained that
even if the government withdraws or modifies a
COVID restriction in the course of litigation,
that does not necessarily moot the case. And so
long as a case is not moot, litigants otherwise
entitled to emergency injunctive relief remain
entitled to such relief where the applicants
“remain under a constant threat” that
government officials will use their power to
reinstate the challenged restrictions.
Id. at 1297 (quoting Catholic Diocese of Brooklyn, 141
S. Ct. at 68). In concluding that plaintiffs’ challenge
was not moot, the Court noted that “the previous
restrictions remain in place until April 15th, and
officials with a track record of ‘moving the goalposts’
retain authority to reinstate those heightened
restrictions at any time.” Id. (quoting S. Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716, 720
(2021) (statement of Gorsuch, J.)).
The Tandon Court’s conclusion rested on its
perception that state officials had a “track record” of
altering COVID-19 guidance, and that it had
previously “summarily rejected the Ninth Circuit’s
analysis of California’s COVID restrictions on religious
exercise” four times. 141 S. Ct. at 1297. In contrast
here, Defendants have been consistent in their
App. 90
approach to mask requirements. For the 2020–21
school year, excluding a few weeks at the beginning of
the school year, Defendants required students in
grades K–5 to wear masks in the classroom. MDHHS
altered its mask requirements only in May 2021 in
response to the CDC’s guidance that individuals who
were vaccinated are unlikely to transmit COVID-19,
and MDHHS eliminated the mask requirements in
June 2021 in response to sustained decreases in the
number of COVID-19 cases, hospitalizations, and
deaths and the wide availability of safe and effective
vaccines.
As for our own circuit, in an unpublished case
reviewing a COVID-19 public-health order, we declined
to apply the voluntary-cessation exception to mootness
where the Governor replaced an executive order with
a recommendation. Pleasant View Baptist Church v.
Beshear, 838 F. App’x 936, 938 (6th Cir. 2020) (order);
cf. Maryville Baptist Church, Inc. v. Beshear, 977 F.3d
561, 566 (6th Cir. 2020) (per curiam) (remanding to the
district court to permit it to consider “whether these
cases have become moot in light of the Governor’s new
orders”). In distinguishing the case from Catholic
Diocese of Brooklyn, we emphasized that “there, unlike
here, the challenged order remained in force subject to
the apparent whims of the Governor, to whom a
presumption of regularity did not apply.” Pleasant View
Baptist Church, 838 F. App’x at 939. 9
9
Plaintiffs suggest without explanation that “Tandon adopted a
different analysis from Pleasant View Baptist Church and a
different standard.” Pls.’ Resp. at 12. Plaintiffs’ argument is
unavailing. The Tandon Court arrived at a different conclusion
App. 91
In some ways, Defendants’ argument that their
rescission of the challenged MDHHS orders moots
Plaintiffs’ claims is stronger than the one accepted in
Pleasant View Baptist Church. In Pleasant View
Baptist Church, we relied on the Governor’s public
statements that he would rely on recommendations
instead of mandates, which he made prior to the
widespread availability of effective vaccines. MDHHS’s
rescission of the challenged orders, by contrast, reflects
widespread availability of and increased eligibility for
effective COVID-19 vaccines. On the other hand,
Pleasant View Baptist Church involved school closures,
which are a more onerous public health measure than
requiring that students wear masks at school. In fact,
MDHHS and other public-health authorities
recommend that all persons wear masks in school to
ensure that schools can maintain in-person learning.
See, e.g., MDHHS, Interim Recommendations for
Operating Schools Safely When There Is COVID-19
Community Transmission (June 25, 2021),
https://www.michigan.gov/documents/coronavirus/CO
VID-19_Guidance_for_Operating_Schools_Safely_
728838_7.pdf. (“Schools can layer multiple prevention
strategies developed by the Centers for Disease Control
and Prevention (CDC) to prevent transmission within
school buildings, reduce disruptions to in-person
learning, and help protect the people who are not fully
vaccinated, which currently includes all children under
the age of 12 years.”).
regarding mootness than we did in Pleasant View Baptist Church
because the Court was responding to the distinct facts of that case,
not because it applied a different standard.
App. 92
We conclude that Defendants cannot meet the
heavy burden of establishing that it is “absolutely
clear” that they will not reimpose a mask requirement,
especially for children younger than twelve who cannot
be vaccinated. We do not doubt the sincerity of
MDHHS’s statements that they have no intention to
reimpose a mask requirement like the one challenged
by Defendants. We also recognize that the rescission of
all pandemic orders, including the mask requirement,
is unique because it reflects the wide availability of
safe and effective vaccines. At the same time, the FDA
has not yet authorized their use in persons younger
than twelve, the group comprising students in grades
K–5. MDHHS has previously reimposed certain
pandemic emergency orders and tightened mask
requirements in response to increasing COVID-19
cases, hospitalizations, and deaths. Considering the
very real possibility that MDHHS may be faced again
with escalating COVID-19 cases, hospitalizations, and
deaths, we hold that Defendants have not met their
“heavy burden” of showing that it is “absolutely clear”
that they will not reimpose impose a mask
requirement, including for children in grades K–5
receiving in-person instruction. Defendants’ rescission
of the challenged MDHHS Orders does not moot
Plaintiffs’ claims.
2. Capable of Repetition, Yet Evading Review
Plaintiffs’ claims further come within the exception
to the mootness doctrine for actions that are “capable
of repetition, yet evading review.” Pls.’ Resp. at 10–14.
This exception is limited “to situations where: ‘(1) the
challenged action was in its duration too short to be
App. 93
fully litigated prior to its cessation or expiration; and
(2) there was a reasonable expectation that the same
complaining party would be subjected to the same
action again.’” Chirco v. Gateway Oaks, L.L.C., 384
F.3d 307, 309 (6th Cir. 2004) (quoting Weinstein v.
Bradford, 423 U.S. 147, 148 (1975)). As the party
asserting this exception, Plaintiffs bear the burden of
proof. Lawrence v. Blackwell, 430 F.3d 368, 371 (6th
Cir. 2005). Plaintiffs satisfy both requirements for this
exception.
Plaintiffs have satisfied the first prong. Although
Plaintiffs filed their complaint and motion for a
preliminary injunction in October 2020, the school year
ended prior to when this case could reach the court of
appeals. It is true that Plaintiffs did not take
advantage of opportunities to expedite our review of
the case.10 Nonetheless, the Supreme Court has found
10
Plaintiffs note that “[t]he District Court’s decision resulted in
nine months of orders that stripped Appellants from their sincerely
held right to religious exercise, equal protection of the law, and
substantive due process.” Pls.’ Resp. at 13. But Plaintiffs are at
least partly responsible for delays in this litigation. Plaintiffs
delayed in filing their complaint in federal court until October 22,
2020 and their emergency motion for a TRO or preliminary
injunction until October 27, 2020, even though Governor Whitmer
issued her initial executive order requiring that students in grades
K–5 wear masks on September 25, 2020, E.O. 2020-185 § 1 (Sept.
25, 2020), and MDHHS issued its first order on October 5, 2020,
10/05/20 MDHHS Order §§ 2–3. Plaintiffs also failed to take
advantage of opportunities to expedite the litigation. For instance,
Plaintiffs could have filed a motion for an injunction pending
appeal, as other parties challenging COVID-19 pandemic orders
have done, see, e.g., Monclova Christian Acad. v. Toledo-Lucas
Cnty. Health Dep’t, 984 F.3d 477, 479 (6th Cir. 2020) (granting the
App. 94
periods of up to two years to be too short to be fully
litigated. See, e.g., Kingdomware Techs., Inc. v. United
States, 136 S. Ct. 1969, 1976 (2016) (holding that a
procurement contract that expires in two years does
not permit judicial review); Deja Vu of Nashville, Inc.
v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d
377, 390–91 (6th Cir. 2001) (holding that two years to
challenge to a local ordinance prohibiting individuals
with a sex-crime history to work for a sexually oriented
business was too short in duration). Specific to the
educational context, we have held, albeit in an
unpublished decision, that an individualized education
program lasting a school year is too short in duration
to litigate to conclusion. Woods v. Northport Pub. Sch.,
487 F. App’x 968, 980 (6th Cir. 2012).
Plaintiffs also satisfy the second requirement of the
“capable of repetition, yet evading review” exception.
This is in part because the standard is a forgiving one.
“Recurrence of the issue need not be more probable
than not; instead, the controversy must be capable of
repetition.” Barry v. Lyon, 834 F.3d 706, 715 (6th Cir.
2016). This standard provides that “the chain of
potential events does not have to be air-tight or even
probable to support the court’s finding of nonmootness.” Id. at 716.
Although Defendants provide ample reasons—
namely the availability of and expanded eligibility for
plaintiffs’ motion for an injunction pending appeal fifteen days
after the district court denied their request for a preliminary
injunction and twenty-four days after the plaintiffs filed their
complaint), or requested expedited briefing or expedited
consideration of their appeal.
App. 95
COVID-19 vaccines—that a mandatory requirement
that students in grades K–5 wear masks in the
classroom is unlikely, that is not the standard. Rather,
we look to whether the controversy is capable of
repetition. MDHHS acknowledged in its order
rescinding the mask requirements that “the COVID-19
pandemic continues to constitute an epidemic in
Michigan.” 06/17/21 MDHHS Order. Both the CDC’s
and MDHHS’s guidance recommend that students in
grades K–12 wear masks in the classroom. This is
sufficient to establish that Plaintiffs’ claims are capable
of repetition, yet evading review.
True, in the election context, we have determined
that lawsuits challenging election procedures in light
of the COVID-19 pandemic and attendant restrictions
are not capable of repetition, yet evading review. Most
recently in Thompson v. DeWine, -- F.4th --, 2021 WL
3183692 (6th Cir. July 28, 2021), we held that the
plaintiffs’ challenge to the signature requirements for
ballot initiatives was moot as to the 2021 election. In
Thompson, the plaintiffs argued that “COVID-19
remains a ‘full blown crisis’ hampering their efforts to
gather signatures for 2021 initiatives,” and thus their
challenge fell under the capable of repetition, yet
evading review exception to the mootness doctrine. Id.
at *4. We concluded, however, that “advancements in
the COVID-19 vaccine and treatment” made COVID-19
unlikely to threaten seriously the plaintiffs’ ability to
collect signatures for the 2021 ballot initiatives. Id.; see
also Memphis A. Philip Randolph Inst. v. Hargett, 2
F.4th 548, 560 (6th Cir. 2021) (“Fortunately, because of
advancements in COVID-19 vaccinations and
treatment since this case began, the COVID-19
App. 96
pandemic is unlikely to pose a serious threat during
the next election cycle.” (citing Trends in Number of
COVID-19 Cases and Deaths in the US Reported to
CDC, by State/Territory, Ctrs. for Disease Control &
Prevention, https://covid.cdc.gov/covid-data-tracker/#
trends_dailytrendscases (June 15, 2021)).11
These election cases, however, are distinguishable
from the present case. First, our decisions in those
cases were contingent on the availability of COVID-19
safe and effective vaccinations and treatment, which
are presently authorized for use by persons old enough
to vote and sign petitions for ballot initiatives, but not
for children in grades K–5. Second, in-person
instruction meaningfully differs from participation in
the electoral process in a way that increases the risk of
contracting and transmitting COVID-19. Whereas
participating in the electoral process is a “discrete,
individualized, often brief activit[y],” in-person
classroom instruction involves “indoor gatherings
occurring for hours a day on a daily basis.” Hertel &
Nessel Br. at 36. Finally, although COVID-19 may not
pose a serious enough disruption to the electoral
process, it may still pose a significant enough problem
to compel MDHHS to mandate that persons, especially
individuals not yet able to be vaccinated, wear masks.
11
Unfortunately, the daily number of COVID-19 cases,
hospitalizations, and deaths has since trended significantly
upwards. Trends in Number of COVID-19 Cases and Deaths in the
US Reported to CDC, by State/Territory, CDC, https://covid.cd
c.gov/covid-data-tracker/#trends_dailytrendscases (accessed on
Aug. 2, 2021).
App. 97
Accordingly, we conclude that Plaintiffs’ claim is not
moot and turn to the merits of their challenge.
B. Standard of Review
We review for abuse of discretion a district court’s
denial of a preliminary injunction. Chabad of S. Ohio
& Congregation Lubavitch v. City of Cincinnati, 363
F.3d 427, 432 (6th Cir. 2004). “While the ultimate
decision to grant or deny a preliminary injunction is
reviewed for an abuse of discretion, we review the
district court’s legal conclusions de novo and its factual
findings for clear error.” Obama for Am. v. Husted, 697
F.3d 423, 428 (6th Cir. 2012). We have cautioned that
“[t]his standard of review is ‘highly deferential’ to the
district court’s decision.” Certified Restoration Dry
Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
541 (6th Cir. 2007) (quoting Leary v. Daeschner, 228
F.3d 729, 739 (6th Cir. 2000)). To summarize, “[w]e
‘review the District Court’s legal rulings de novo’
(including its First Amendment conclusion), ‘and its
ultimate conclusion [as to whether to grant the
preliminary injunction] for abuse of discretion.’” Platt
v. Bd. of Comm’rs on Grievances & Discipline of Ohio
Sup. Ct., 769 F.3d 447, 454 (6th Cir. 2014) (quoting
McCreary County v. ACLU of Ky., 545 U.S. 844, 867
(2005)).
In determining whether to grant a preliminary
injunction, we consider four factors: “(1) whether the
movant has a strong likelihood of success on the merits;
(2) whether the movant would suffer irreparable injury
absent the injunction; (3) whether the injunction would
cause substantial harm to others; and (4) whether the
public interest would be served by the issuance of an
App. 98
injunction.” Bays v. City of Fairborn, 668 F.3d 814,
818–19 (6th Cir. 2012). Where, as in this case,
Plaintiffs “seek[] a preliminary injunction on the basis
of a potential constitutional violation, ‘the likelihood of
success on the merits often will be the determinative
factor.’” Obama for Am., 697 F.3d at 436 (quoting Jones
v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).
Accordingly, we focus our attention on whether
Plaintiffs can establish a likelihood of success on the
merits.
C. Free-Exercise Challenge
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. Hernandez v. Comm’r of
Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not
within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity
of particular litigants’ interpretations of those creeds.”).
Defendants largely do not question the sincerity of the
Plaintiffs’ religious objection to wearing a mask in the
classroom.12
12
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,” Vail &
Siemon Br. at 6, or “provide any examples of ways in which masks
interfere with or burden their religious beliefs,” id. at 19. Plaintiffs’
objections to masks admittedly are confusing and at times, digress
into secular, rather than religious concerns. Nevertheless, a
App. 99
We begin with the familiar framework for freeexercise claims. Where a challenged law is neutral and
of general applicability and has merely an “incidental
effect” on Plaintiffs’ religious beliefs, Defendants need
not show a compelling governmental interest. Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531 (1993); see also Emp. Div., Dep’t of Hum.
Res. of Oregon v. Smith, 494 U.S. 872, 878 (1990)
(holding that if burdening the exercise of religion is
“merely the incidental effect of a generally applicable
and otherwise valid provision, the First Amendment
has not been offended.”). Where the challenged law
does not meet these requirements, Defendants must
show that the policy is narrowly tailored to serve a
compelling state interest. Church of the Lukumi
Babalu Aye, 508 U.S. at 531–32. This rule, in part,
reflected practical concerns with requiring
governments to satisfy the stringent standard of
establishing a compelling interest for “all actions
thought to be religiously commanded.” Smith, 494 U.S.
at 888. Requiring governments to show more than a
rational basis for a law of neutral and general
applicability would:
open the prospect of constitutionally required
religious exemptions from civic obligations of
almost every conceivable kind—ranging from
compulsory military service, to the payment of
taxes; to health and safety regulation such as
plaintiff’s “religious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First
Amendment protection.” Thomas v. Rev. Bd. of Ind. Emp. Sec.
Div., 450 U.S. 707, 714 (1981).
App. 100
manslaughter and child neglect laws,
compulsory vaccination laws, drug laws, and
traffic laws; to social welfare legislation such as
minimum wage laws, child labor laws, animal
cruelty laws, environmental protection laws, and
laws providing for equality of opportunity for the
races.
Id. at 888–89 (citations omitted).
A law, of course, is not neutral and of general
applicability if it discriminates on its face. Hartmann
v. Stone, 68 F.3d 973, 976, 978 (6th Cir. 1995).
Relatedly, “[a] law might be motivated by animus
toward people of faith in general or one faith in
particular.” Roberts v. Neace, 958 F.3d 409, 413 (6th
Cir. 2020) (per curiam). Even if a law appears neutral
and is devoid of animus, it is not neutral and of general
applicability if it is “riddled with exemptions.” Ward v.
Polite, 667 F.3d 727, 738 (6th Cir. 2012).
We considered the intersection between religious
schools and COVID-19 orders in Commonwealth v.
Beshear, 981 F.3d 505 (6th Cir. 2020). In Beshear, the
plaintiffs argued that a Kentucky order that
temporarily prohibited in-person instruction at public
and private K–12 schools violated their free-exercise
rights. We concluded, in a published opinion, that the
plaintiffs were unlikely to succeed on their claims that
the order violated the Free Exercise Clause of the First
Amendment, and thus stayed the district court’s
preliminary injunction. Id. at 511. First, we determined
that the order was “neutral and of general
applicability” because it “applies to all public and
private elementary and secondary schools in the
App. 101
Commonwealth, religious or otherwise.” Id. at 509.
Accordingly, the order “need not be justified by a
compelling governmental interest.” Id. Thus, deferring
to “the Governor’s determination regarding the health
and safety of the Commonwealth at this point in time,”
we concluded that the plaintiffs were unlikely to
succeed on the merits of their free-exercise challenge.
Id. at 510. The Supreme Court denied the plaintiffs’
petition for a writ of certiorari without reaching the
merits of the case because of the “timing and the
impending expiration of the Order.” Danville Christian
Acad., Inc. v. Beshear, 141 S. Ct. 527, 528 (2020).
In the present case, the district court applied
Beshear and 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. We agree with the district court’s
application of Beshear.
Plaintiffs argue that a subsequent case, Monclova
Christian Academy v. Toledo-Lucas County Health
Department, 984 F.3d 477 (6th Cir. 2020) (order),
conflicts with the district court’s order here. In
Monclova Christian Academy, the panel concluded that
a county health-department order requiring all schools
in the county to close for in-person learning was subject
to strict scrutiny. Although the order temporarily
prohibiting in-person education applied to public and
religious K–12 schools alike, the panel construed the
relevant comparator as secular businesses such as
“gyms, tanning salons, office buildings, and the
Hollywood Casino” that the health order had permitted
App. 102
to remain open, not non-religious K–12 schools. Id. at
482. Accordingly, the panel held that health order was
not neutral and of general applicability and applied
strict scrutiny to the challenged order. Applying this
standard, the panel concluded that the healthdepartment order was not narrowly tailored to serve a
compelling state interest and granted plaintiffs’ motion
for a preliminary injunction. Following the framework
of Monclova Christian Academy, Plaintiffs argue that
the district court erred by failing to compare MDHHS’s
interest in requiring that students in grades K–5 wear
masks in the classroom with MDHHS’s interest in
allowing persons not to wear masks in certain, secular
circumstances. Pls.’ Br. at 30.
Beshear and Monclova Christian Academy, however,
seemingly conflict with one another. Indeed, the panel
in Monclova Christian Academy recognized that
Beshear could pose an issue but contended that the
decision in Beshear did not consider the “broader
question” of “whether an order closing public and
parochial schools violates the Clause if i
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