Catholic school: Rescinded mask mandate still a threat

A 17-judge federal appeals court Wednesday considered a Catholic school’s constitutional challenge of a Michigan mask mandate. The state directive, rescinded nine months ago, exempted restaurant diners and even strip club patrons from wearing masks but required Resurrection School’s fourth graders to mask up.

A U.S. District Court judge rejected the request from the Lansing-based school and two parents that the state be barred from enforcing the mask requirement. Then, in August 2021, a panel of the court ruled 2-1 to uphold the state mandate even though it contained no religious exemption. School officials argue the mandate undermined the school’s religious belief that human beings are made in the image of God by robbing students of face-to-face interaction.

On Wednesday, the judges pressed school attorneys on whether the school still had a basis for being in court when the mask mandate was rescinded nine months ago. Attorney Elizabeth Mersino argued the case was not moot because school officials could still face criminal charges for not requiring students to wear masks in the classroom back when the mandate was in force. She also pointed to the state’s refusal to say it would not press charges or reimpose the mask mandate.

“The government asserts an extreme reading of the mootness doctrine that would allow it to impose any epidemic order it pleases, while evading the review of the appellate courts,” Mersino’s brief stated. “The nature of the government’s ever-changing COVID orders allow only a small window of time for adjudication in the courts.”

John Bursch, an attorney with legal advocacy group Alliance Defending Freedom (ADF) who participated in oral arguments after filing a friend-of-the-court brief, said the case presents an opportunity to clarify how courts should apply the Supreme Court’s April 2021 ruling in Tandon v. Newsom. In it, the justices struck down discriminatory worship restrictions on in-home gatherings. They ruled that governmental restrictions must be strictly scrutinized whenever they treat any comparable secular activity more favorably than religious activity. Bursch criticized the judges’ attempts to focus on particular activities rather than on how much risk of coronavirus transmission was involved, in contrast with the reasoning in Tandon.

For instance, restaurants have an exemption because eating and drinking are “inherently incompatible” with masking. But Resurrection School believes masking is “inherently incompatible” with in-person instruction, and its activities are not higher risk. Bursch explained that focusing on the nature of the activity rather than risk prioritizes practical reasons for exemptions over religious ones.

“You could sit in a strip club for eight hours and nurse a drink or two, and so long as you do that you could be unmasked the whole time,” Bursch said. “Well, how can the government pick that as an acceptable exemption and then say that students in a pod, in a religious classroom, reading the Bible, don’t get that same benefit when the school has ventilation and testing and other steps that have been taken to make sure that kids are safe?”

Even more cautious jurisdictions have retreated from school mask mandates in recent weeks as COVID-19 has waned. District of Columbia Mayor Muriel Bowser rescinded the U.S. capital’s mask order on Tuesday — one day after ADF filed a lawsuit on behalf of two families with children at a Catholic school. In Pennsylvania, an orchestrated effort to require school districts to reimpose mask mandates appears to be losing ground: Most judges have rejected its argument that not requiring masks violates the Americans with Disabilities Act by discriminating against medically vulnerable children, National Review reported.

“One thing that I think everyone can agree on is that the government has an interest in providing public health guidance and protecting its citizens,” Bursch said. “But what is important is that as the government is doing that, it cannot pick winners and losers and say you get the exemption and you don’t.”