Michigan Catholic school seeks broad exception from mask mandate

A sign advising the use of face masks is pictured at an elementary school, amid the coronavirus disease pandemic, in West Bloomfield Township, Michigan. September 9, 2020. REUTERS/Emily Elconin
  • School cites Supreme Court's Philadelphia v. Fulton ruling to support broad exception
  • Parties split on whether case is moot after mandate rescinded

(Reuters) - A Lansing, Michigan, Catholic school on Wednesday urged a federal appeals court to find unconstitutional the state's now-rescinded mandate that school students wear masks to curb the spread of COVID-19, which it says imposes on its free exercise of religion.

Erin Mersino of Great Lakes Justice Center told Judges Bernice Donald, Eugene Siler and Karen Moore of the 6th U.S. Circuit Court of Appeals panel that the Supeme Court's ruling last month in a dispute over a Catholic foster care agency that turned away same-sex couples supported broad legal exceptions for religious institutions.

The school, she said, "seeks only an accommodation that will allow it to continue serving children in a manner consistent with its religious beliefs."

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Daniel Ping of the Michigan Attorney General's office said the mask mandate was "a neutral, generally applicable law that imposed only an incidental burden on religion."

"What they're asking for is a very high degree of preferential treatment," he said.

The panel did not clearly signal which way it would rule.

In its lawsuit, filed last year, the school alleged that the mask mandate infringed on its ability to deliver instruction according to its Christian beliefs.

It said that "Jesus made seeing the other a priority" and that masks "make it more difficult to freely and effectively see, know and love others." That included interfering with a disciplinary process meant to teach mercy and forgiveness by requiring face-to-face apologies, the school said.

U.S. District Judge Paul Maloney in Grand Rapids denied Resurrection School's bid for a preliminary injunction, finding the plaintiffs were unlikely to succeed.

On appeal, the state argued that the lawsuit had become moot when the mask mandate was rescinded earlier this year.

Mersino rejected that argument, saying that state officials had given expanded vaccination, which is not yet available to many school-age children, as a rationale for ending the mandate. She said there was still a risk it would be reimposed for students in the fall.

"It is not the burden of the appellants to show it won't happen again," she said.

Mersino cited the Supreme Court's decision in Fulton v. Philadelphia, which held that Philadelphia violated the First Amendment when it refused to place children for foster care with a Catholic agency because the agency barred same-sex couples from applying to become foster parents.

She said that decision showed that a rule that is, on its face, equally applicable to all can still be unconstitutional if it burdens the free exercise of religion.

Ping countered that the school was seeking an exception from masks at almost all times, far broader than exceptions granted for any other reason.

"It has no limiting principle whatsoever," he said.

The case is Resurrection School et al v. Hertel et al, 6th U.S. Circuit Court of Appeals, No. 20-2256.

For the school: Erin Mersino of Great Lakes Justice Center

For the state: Daniel Ping of the Office of the Attorney General

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.