A Lansing, Michigan Catholic school’s request to stop the enforcement of a mask mandate is currently in limbo, after a federal district court judge recently denied the school’s plea for a second time.

Earlier this month, Resurrection School once again asked U.S. District Court Judge Paul Maloney to grant a temporary restraining order (TRO) and stop the enforcement of a recent mask mandate issued by the Ingham County Health Department. The TRO request came a little more than one week after the 6th U.S. Circuit Court of Appeals, in Resurrection School v. Hertel, rejected the school’s similar request over a now-lifted statewide mask mandate.

In the recent TRO denial, Judge Maloney said there were procedural issues with Resurrection School’s request because it did not file an affidavit or a verified complaint, other than those that were filed last year at the outset of the case.

Judge Maloney also looked to the 6th Circuit’s recent ruling in the case. He noted the federal appeals court held that the Pennsylvania case on which Resurrection School had relied, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), did not directly apply. According to Judge Maloney, the school did not demonstrate a specific targeting of religious schools under the Ingham County Health Department’s current mask mandate.

Rejecting the TRO request, Judge Maloney said: “Plaintiffs want the court to infer that because public school students must already wear masks because of local district mandates, the county mandate was issued to reach religious schools. … On the present record, the court declines to issue [a TRO] on the basis of this ambiguous statement made by an unnamed county official.”

Last week, Resurrection School filed a brief and affidavit in support of its TRO motion. A hearing is scheduled for September 23, 2021.

Background

The plaintiffs are a Lansing, Michigan Catholic school and parents of children attending the school. They challenged the mask mandate issued by the Michigan Department of Health and Human Services (MDHHS) for grades K-5 in all schools.

Resurrection School filed the lawsuit in the U.S. District Court, Western District of Michigan, last October. The school argued the statewide mask mandate in effect at the time violated the free exercise of religion, equal protection and due process clauses of the U.S. Constitution. The school also claimed the mandate violated Michigan’s public health code and the state’s separation of powers and non-delegation clauses.

Judge Maloney disagreed and, in late October 2020, denied the school’s request for a temporary restraining order. He said the state order in effect at the time was not motivated by hostility toward any specific religious faith and it was neutral because it applied to all schools. 

Resurrection School appealed the decision to the 6th Circuit. By this time, the statewide mask mandate had been rescinded. (Note: While Michigan’s statewide mask mandate is no longer in effect, some school leaders have asked the state to reinstate the mask mandate, rather than leaving the decision to individual school districts and county health departments.)

6th Circuit Ruling

On appeal, the State of Michigan asked the 6th Circuit to dismiss the case, asserting the issue was moot because the statewide mask mandate had been lifted. However, the 6th Circuit disagreed in a decision issued August 23, 2021, finding the issue was not moot because it is unclear whether Michigan will reinstate a statewide mask mandate.

Next, the 6th Circuit turned to Resurrection School’s constitutional arguments. The federal appeals court first found the mask mandate applied equally to religious and secular schools and was “rationally related” to a legitimate government interest. “[A]lmost all exceptions to the MDHHS Orders - aside from children younger than five years old and those medically unable to wear a mask - are short in duration and lower risk (medical and personal care services requiring removal of a mask; voting). … Some of the exceptions have a stringent social distancing requirement (public speaking with twelve feet of distance) or are outdoors where the risk of COVID-19 transmission is reduced (outdoor, physically distanced exercise). … The MDHHS Orders also exempt activities that are necessary to fulfill ‘equally important obligations to its citizens’ health and safety’ ….”

According to the 6th Circuit, “exceptions to the MDHHS Orders were available to Plaintiffs if they had chosen to engage in that activity. … Plaintiffs were able to remove their face coverings to eat lunch at school, swim during physical education class, participate in Mass at school, engage in distanced public speaking on a religious topic, or exercise outdoors while physically distanced during recess. … Under the MDHHS orders, persons medically unable to wear a face covering … could go without a face covering at school. … We conclude that the MDHHS Orders do not violate the Free Exercise Clause because the MDHHS Orders are neutral and of general applicability and satisfy rational-basis review.”

When applying Commonwealth of Kentucky v. Beshear, 981 F.3d 505 (6th Cir. 2020)], the U.S. District Court “correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability,” the 6th Circuit wrote. “We agree with the district court’s application of Beshear.”

Regarding the equal protection challenge, the 6th Circuit said the argument presented was “confusing,” was “largely a repackaging of” the free-exercise argument and was without merit. “First, Plaintiffs fail to satisfy th[e] threshold requirement of showing that the state has treated similarly situated persons differently than Plaintiffs,” the 6th Circuit wrote. “Plaintiffs argue that the MDHHS Orders result in ‘disparate treatment’ because they permit persons to remove their masks while engaging in certain secular activities and in religious worship in a house of worship, while requiring students in grades K-5 at religious schools to wear masks. This is a free-exercise challenge, not an equal-protection challenge. Seemingly recognizing that this is a free-exercise challenge, Plaintiffs open their argument by stating that ‘the challenged measures burden Plaintiffs’ fundamental rights to the free exercise of religion under the First Amendment in violation of the equal protection guarantee of the Fourteenth Amendment.’ … Further, there is no ‘disparate treatment’ because the MDHHS Orders did not distinguish between certain groups of children. The MDHHS Orders required all children ages five and older to wear masks in public, subject to a few universal exceptions that were available to Plaintiffs.”

The school’s argument “that the requirement that children ages 5 years and older wear masks in the classroom lacks any rational basis is equally unavailing,” the 6th Circuit said. “[The] MDHHS Orders satisfy rational-basis review. Accordingly, we conclude that Plaintiffs’ equal-protection claim fails.”

The 6th Circuit also dismissed the school’s due process claim. “Plaintiffs’ challenge to the MDHHS Orders lies in the First Amendment’s Free Exercise Clause, and thus, their substantive-due-process claim is duplicative. The district court admittedly did not explicitly address the merits of Plaintiffs substantive-due-process claim. We nonetheless conclude that Plaintiffs’ substantive-due-process claim is without merit.”

After the 6th Circuit panel issued its decision in late August, Resurrection School asked for an en banc hearing - that is, the school has requested that all the 6th Circuit judges examine the case, and not just the three-judge panel. The 6th Circuit has yet to rule on this request.