35 F.4th 524
6th Cir.2022Background
- In Oct. 2020 Michigan's MDHHS issued a statewide mask mandate applicable to public and private schools but listing numerous secular exceptions (e.g., dining, personal-care services, some sports); no religious exemption for classroom instruction as MDHHS construed “religious service” narrowly.
- Resurrection School (a private Catholic school) and two parents sued, alleging the order violated the Free Exercise Clause; they sought a preliminary injunction but the district court denied it in Dec. 2020.
- MDHHS revised its orders repeatedly and then rescinded the statewide mandate on June 17, 2021; Ingham County later imposed and later rescinded its own school masking orders during the pendency of the suit.
- The case reached the Sixth Circuit en banc on interlocutory appeal from the denial of a preliminary injunction; defendants moved to dismiss as moot after the statewide rescission.
- The en banc majority held both the preliminary-injunction appeal and the underlying claim moot (voluntary cessation; no reasonable expectation the same or similar mandate will recur), vacated the district court’s denial under Munsingwear, and remanded with instructions to dismiss.
- Separate opinions: Judge Moore concurred; Judge Readler concurred in part (agreeing preliminary appeal moot but would keep merits live); Judge Bush dissented, arguing the case remained justiciable and merits should be decided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interlocutory appeal from denial of preliminary injunction is moot after MDHHS rescission | Resurrection: rescission doesn't moot appeal because order could be reenacted (voluntary cessation exception; county mandates show recurrence) | State: rescission moots appeal; no reasonable expectation of reenactment given changed facts and political accountability | Moot — appeal of preliminary injunction dismissed (no reasonable expectation of recurrence during the preliminary window) |
| Whether voluntary cessation doctrine bars dismissal | Resurrection: agency can reverse but must meet high burden to show conduct won’t recur; agency and counties have defended policies vigorously | State: rescission was in good faith and circumstances changed (vaccines, lower cases) so voluntary cessation moots case | Voluntary cessation mootness affirmed — state met practical showing that recurrence is unlikely here |
| Whether "capable of repetition yet evading review" saves the case | Resurrection: pandemic measures are short-lived and likely to recur (e.g., county reimpositions), so exception applies | State: circumstances and later caselaw make similar mandates unlikely to recur in substantially similar form | Exception inapplicable — court finds recurrence unlikely and legal developments reduce chance of materially similar order |
| Justiciability of the underlying claim (case as whole) and remedy | Resurrection: fair prospect MDHHS or counties will reimpose mandates; merits should be resolved (Monclova/Tandon/Fulton favor plaintiffs) | State: changed public-health facts and legal landscape make the controversy moot; vacatur of district-order appropriate | Case as a whole dismissed as moot; district court’s denial vacated under Munsingwear and remanded with instruction to dismiss |
Key Cases Cited
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Article III limits courts to live controversies)
- DeFunis v. Odegaard, 416 U.S. 312 (1974) (mootness doctrine explained)
- Ohio v. EPA, 969 F.3d 306 (6th Cir. 2020) (mootness principles for injunction appeals)
- Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019) (voluntary cessation and factors bearing on mootness)
- Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477 (6th Cir. 2020) (comparable non-identical secular activities may defeat general applicability)
- Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020) (earlier panel on COVID restrictions and general applicability)
- Tandon v. Newsom, 141 S. Ct. 1294 (2021) (regulations treating comparable secular activity more favorably than religion trigger strict scrutiny)
- Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) (executive-discretion/exemption schemes undermine general applicability and invoke strict scrutiny)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (requirements for credible threat of future prosecution/standing)
- United States v. Munsingwear, 340 U.S. 36 (1950) (vacatur of lower-court orders when case becomes moot on appeal)