11 F.4th 437
6th Cir.2021Background
- Michigan MDHHS required masks for all persons age 5+ in indoor public settings, including K–5 classrooms, as part of COVID-19 mitigation; MDHHS later rescinded most pandemic orders (including the mask requirement) in June 2021.
- Plaintiffs: Resurrection School (Catholic elementary) and two parents sued alleging violations of Free Exercise, Equal Protection, and Substantive Due Process, and sought a preliminary injunction/TRO to enjoin enforcement of the mask orders against K–5 students.
- District court denied the TRO and denied the preliminary injunction, concluding the orders were neutral, generally applicable, and rationally related to the public-health interest. Plaintiffs appealed.
- Defendants moved to dismiss the appeal as moot after rescission; plaintiffs argued exceptions (voluntary cessation; capable of repetition yet evading review).
- Sixth Circuit held the appeal was not moot (both exceptions applied) but affirmed the district court’s denial of preliminary injunctive relief on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness — voluntary cessation | Rescission is voluntary and does not bar review because orders could be reimposed. | Rescission renders the case moot because the challenged policy no longer operates. | Not moot: defendants failed heavy burden to show it is “absolutely clear” mask mandate won’t return. |
| Mootness — capable of repetition yet evading review | School-year measures are too short for full review and may recur for same parties. | Vaccination and changed circumstances make recurrence unlikely. | Exception applies: school-year duration + ongoing pandemic risks make repetition plausible. |
| Free Exercise | Mask rule burdens sincere religious exercise and parental rights; strict scrutiny required because comparable secular activities were exempt. | Rule is neutral, generally applicable, and justified by the state’s interest in controlling COVID-19 (rational-basis review). | Affirmed: rule is neutral/generally applicable and rationally related to legitimate public-health interest; no strict scrutiny. |
| Equal Protection & Substantive Due Process | Differential exemptions and interference with parental/educational rights; mask rule arbitrary. | No disparate treatment of similarly situated schoolchildren; rational basis exists; substantive-due-process claim duplicative of First Amendment claim. | Affirmed dismissal: no equal-protection violation; substantive-due-process claim fails as duplicative. |
Key Cases Cited
- Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020) (upholding neutral/general-applicability analysis for statewide COVID school restrictions)
- Monclova Christian Academy v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477 (6th Cir. 2020) (panel applied a broader comparator analysis to school-closure orders)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (addressing mootness risk when restrictions may be swiftly reimposed under a continuing regulatory framework)
- Tandon v. Newsom, 141 S. Ct. 1294 (2021) (government treats comparable secular activity more favorably => strict scrutiny for Free Exercise)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Free Exercise analysis for laws motivated by religious animus or facially discriminatory)
- Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws that incidentally burden religion are reviewed under rational basis)
- Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (neutrality/general applicability when government grants unfettered discretion to exempt)
- Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (religious institutions retain autonomy over matters of faith and doctrine, but not general immunity from secular law)
- United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199 (1968) (voluntary cessation does not moot a case absent assurance wrongful conduct won’t recur)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (2000) (mootness and voluntary cessation principles)
- Powell v. McCormack, 395 U.S. 486 (1969) (case-or-controversy/mootness doctrine)