CINCINNATI (CN) — The "exceedingly remote" possibility Michigan's Department of Health and Human Services could reimpose a mask mandate on students is not enough to keep a First Amendment suit brought by a private school alive, according to a ruling from the en banc Sixth Circuit.
Resurrection School in Lansing, along with several parents, sued the state of Michigan in October 2020 after a mask mandate was instituted by the Department of Health and Human Services to stop the spread of Covid-19.
There were no religious exemptions in the mandate, which was implemented after a similar mandate from Democratic Governor Gretchen Whitmer was struck down by the state supreme court as unconstitutional.
Following advancements in treatment options, including the various Covid-19 vaccines, the state rescinded the mandate in June 2021.
A federal judge denied the school's motion for a preliminary injunction, and while a three-judge panel of Sixth Circuit judges upheld that decision, the appeals court also ruled the claims were not mooted when the mandate was repealed.
The case was argued for a second time in March 2022, this time in front of the entire appeals court, which culminated in Wednesday's decision.
A divided court determined Resurrection School could no longer pursue First Amendment claims against the state because any decision would have "no practical effect" on the litigants.
U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, wrote the court's lead opinion, and succinctly rejected the school's arguments regarding exceptions to the mootness doctrine.
Kethledge opined there is "no reasonable possibility" the state will reimpose either the same mandate or one so similar it would represent a reversal of Michigan's voluntary cessation of the order.
"First, the state rescinded the mask mandate not in response to this lawsuit, but eight months later, along with several other pandemic-related orders.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," he wrote. "And the defendants' own political accountability diminishes any chance that they would reimpose the same mandate after this litigation ends."
Kethledge pointed out that since the mandate was implemented and ultimately rescinded, various courts – including the U.S. Supreme Court – have blocked a number of Covid-related mandates on free exercise of religion grounds.
"This dispute is therefore moot," he concluded, "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 of 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."
Kethledge was joined in his opinion by Chief U.S. Circuit Judge Jeffrey Sutton and fellow U.S. Circuit Judges Karen Moore, R. Guy Cole Jr., Eric Clay, Julia Gibbons, Helene White, Jane Stranch, Bernice Donald, Amul Thapar, Joan Larsen, John Nalbandian and Eric Murphy.
U.S. Circuit Judge John Bush, a Donald Trump appointee, dissented from the majority with a lengthy opinion in which he concluded that "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."
Bush took issue with the majority's "good faith" approach regarding re-implementation of the mandate and pointed out the state admitted at oral argument it "could reinstate its masking order 'on a moment's notice,' 'without the legislature,' 'on their own,' and 'without any other approval.'"
He also disputed the "political accountability" claim made by Kethledge in the majority opinion, and wryly noted that he "had always thought that defendants' imposition and recission of the mask mandate was based upon biological science rather than political science."
Bush lamented the majority's decision to rule the entire case moot and said the decision "stripped us of a valuable opportunity to clarify the law of our circuit."
"[The majority] makes not a prediction about justiciability in the context of an interlocutory order," he concluded, "but instead an affirmative declaration that there is no case or controversy at all between Resurrection School and MDHHS. As a result, it has necessarily said nothing about the merits of the First Amendment challenge underlying today's dispute," he wrote. (Emphasis in original.)
He added, "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."
Senior U.S. Circuit Judge Eugene Siler Jr. and U.S. Circuit Judge Richard Griffin joined Bush in his dissent.
Neither party immediately responded to requests for comment.
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