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Federal appeals court sides with MDHHS, says mask mandate did not violate first amendment

teacher kneeling at desk, showing students papers
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In October, Resurrection School—a Catholic K-8 school in Lansing—claimed the Michigan Department of Health and Human Services' school mask mandate violates its religious freedoms, particularly the religious belief that human beings were made in God's image.

The Sixth Circuit Court of Appeals sided with the MDHHS, saying the now-rescinded mandate does not violate any religious or first amendment freedoms. 

Previously, the plaintiffs had requested that a district court judge grant a preliminary injunction, which would have allowed them to not enforce the policy for the time being. That preliminary injuction was denied. The Sixth Circuit Court affirmed the denial of that preliminary injunction.

In her opinion, Judge Karen Nelson Moore referenced a previous Sixth Circuit Court decision, and wrote that no religious freedoms were violated, because the order applied to both religious and secular schools.

"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," she wrote. "Even under this broader conception of comparable secular activity, the MDHHS orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. The exceptions to the MDHHS Orders were narrow and discrete."

The opinion also notes that such a mask mandate could be legally reimposed should COVID-19 present a pressing need.

MDHHS spokesperson Lynn Sutfin provided the following statement in response to the decision:

"MDHHS is pleased with the Sixth Circuit Court of Appeals’ decision. Masks continue to be one of the most important tools in the fight against COVID-19, especially for those individuals who are not eligible to receive the safe and effective COVID-19 vaccine. We encourage all eligible Michiganders to get vaccinated as soon as they are able as this is how we will end the pandemic together."

Attorney General Dana Nessel, who was also named as a plaintiff in the lawsuit, provided the following comment:

"This ruling affirms our continued stance that MDHHS was well within its jurisdiction to impose a mask mandate to help control the spread of COVID-19 as children went back to the classroom last school year. As science has proven and now the Sixth Circuit agrees, enacting a mask mandate in the manner in which MDHHS did so does not violate one’s rights—it is a measure by which we can better protect public health."

Erin Mersino of the Great Lakes Justice Center and attorney for Resurrection School said they would be filing a petition for a rehearing en banc, or with all of the judges on the panel, not just the three-judge panel that oversaw this case. She says that's because the decision wasn't unanimous.

"While we truly respect all three judges on the panel, we believe the dissenting judge presented the most accurate legal analysis and raised matters that need to be decided by the full court," she said. "We look forward to continuing the appeal and hope for a favorable outcome that properly preserves the protections guaranteed by the First Amendment." 

Caroline is a third year history major at the University of Michigan. She also works at The Michigan Daily, where she has been a copy editor and an opinion columnist. When she’s not at work, you can find her down at Argo Pond as a coxswain for the Michigan men’s rowing team. Caroline loves swimming, going for walks, being outdoors, cooking, trivia, and spending time with her two-year-old cat, Pepper.
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