Resurrection Sch. v. Elizabeth Hertel ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0114p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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RESURRECTION SCHOOL; CHRISTOPHER MIANECKI,
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individually and as next friend on behalf of his minor
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children C.M., Z.M., and N.M.; STEPHANIE SMITH,
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individually and as next friend on behalf of her minor
│
child F.S., > No. 20-2256
Plaintiffs-Appellants, │
│
│
v. │
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ELIZABETH HERTEL, in her official capacity as the │
Director of the Michigan Department of Health and │
Human Services; DANA NESSEL, in her official │
capacity as Attorney General of the State of Michigan; │
LINDA VAIL, in her official capacity as the Health │
Officer of Ingham County; CAROL A. SIEMON, in her │
official capacity as the Ingham County Prosecuting │
Attorney, │
Defendants-Appellees. │
┘
On Petition for Rehearing En Banc.
United States District Court for the Western District of Michigan at Grand Rapids;
No. 1:20-cv-01016—Paul Lewis Maloney, District Judge.
Argued En Banc: March 9, 2022
Decided and Filed: May 25, 2022
Before: SUTTON, Chief Judge; SILER, MOORE, COLE, CLAY, GIBBONS,
GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,
BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges.*
*Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Siler, a senior judge of
the court who sat on the original panel in this case, participated in this decision.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 2
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COUNSEL
ARGUED EN BANC: Erin Elizabeth Mersino, GREAT LAKES JUSTICE CENTER, Lansing,
Michigan, Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for
Appellants. Daniel J. Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for State of Michigan Appellees. John J. Bursch, ALLIANCE DEFENDING
FREEDOM, Washington, D.C., for Amicus Curiae. ON SUPPLEMENTAL BRIEF: Erin
Elizabeth Mersino, GREAT LAKES JUSTICE CENTER, Lansing, Michigan, Robert J. Muise,
AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Daniel J. Ping,
Ann M. Sherman, Jennifer Rosa, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for State of Michigan Appellees. Bonnie G. Toskey, Sarah K. Osburn, COHL,
STOKER & TOSKEY, P.C., Lansing, Michigan, for Appellees Linda Vail and Carol Siemon.
ON AMICUS BRIEF: John J. Bursch, Cody S. Barnett, ALLIANCE DEFENDING FREEDOM,
Washington, D.C., Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Amici Curiae.
KETHLEDGE, J., delivered the opinion of the court in which SUTTON, C.J., and
MOORE, COLE, CLAY, GIBBONS, WHITE, STRANCH, DONALD, THAPAR, LARSEN,
NALBANDIAN, and MURPHY, JJ., joined, and READLER, J., joined in Parts I and II.A.
MOORE, J. (pg. 8), delivered a separate concurring opinion in which WHITE, STRANCH, and
DONALD, JJ., joined. READLER, J. (pp. 9–11), delivered a separate opinion concurring in part
and dissenting in part. BUSH, J. (pp. 12–43), delivered a separate dissenting opinion in which
SILER and GRIFFIN, JJ., joined.
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OPINION
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KETHLEDGE, Circuit Judge. In this case, a private religious school and two parents of
students who attend private religious schools seek a preliminary injunction as to a statewide mask
mandate that the State itself repealed almost a year ago. We hold that both this interlocutory appeal
and the claim itself are now moot.
I.
In April 2020, Michigan Governor Gretchen Whitmer imposed a statewide mask mandate
in response to the COVID-19 pandemic. In September 2020, she extended the mandate to require
children in elementary schools to wear masks in the classroom. R.1-4. On October 2, 2020, the
Michigan Supreme Court held that both of the Governor’s orders violated the Michigan
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 3
Constitution, on the ground that they represented the “exercise of the legislative power by the
executive branch.” In re Certified Questions, 958 N.W.2d 1, 24, 31 n.25 (Mich. 2020).
Yet a week later the Michigan Department of Health and Human Services imposed a
mandate of its own, which likewise required masks in public settings, including classrooms in
public and private schools. R.1-1. The order included a dozen exceptions, namely for “individuals
who:”
(a) Except as otherwise provided . . . are younger than 5 years old . . . ;
(b) Cannot medically tolerate a face covering;
(c) Are eating or drinking while seated at a food service establishment;
(d) Are exercising outdoors and able to consistently maintain six feet of distance from
others;
(e) Are swimming;
(f) Are receiving a service for which temporary removal of the face covering is
necessary;
(g) Are entering a business or are receiving a service and are asked to temporarily
remove a face covering for identification purposes;
(h) Are communicating with someone who is deaf, deafblind, or hard of hearing and
whose ability to see the mouth is essential to communication;
(i) Are actively engaged in a public safety role, including but not limited to law
enforcement, firefighters, or emergency medical personnel, and where wearing a
face covering would seriously interfere in the performance of their public safety
responsibilities;
(j) Are at a polling place for purposes of voting in an election;
(k) Are engaging in a religious service;
(l) Are giving a speech for broadcast or to an audience, provided that the audience is
at least six feet away from the speaker.
That same month, the plaintiffs brought this suit, claiming that the State’s mask mandate
violated their right to the free exercise of religion under the First (and Fourteenth) Amendment to
the U.S. Constitution. R.1 at 22–23. The plaintiffs also filed a motion to enjoin the mask mandate
preliminarily, which the district court denied in December 2020. The plaintiffs then brought this
appeal, asking us to enjoin the mandate while their case is litigated in the district court.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 4
Meanwhile, between November 2020 and May 2021, the Department issued no fewer than
twelve different orders revising its mask mandate—sometimes eliminating an exception (such as
the one for polling places), other times tightening an exception (such as by limiting the exception
for “service[s] for which removal of the face mask is necessary” to only medical services), and
sometimes revising an earlier revision (such as a change to allow people to remove masks for
“personal care services” like tanning and piercing). By the spring of 2021, however, the relevant
public-health conditions had changed. By then the U.S. Food and Drug Administration had
authorized three COVID-19 vaccines; better therapeutics had become available; and case counts,
hospitalizations, and deaths had fallen in Michigan. The Department cited these developments—
along with the “warmer weather”—and rescinded the mask mandate (and various other pandemic-
related orders) on June 17, 2021. Doc. 34-2. The defendants then moved to dismiss this appeal
as moot.
II.
Any number of precepts about the federal judicial power (indeed, one could argue, nearly
all of them) trace back to Chief Justice John Marshall’s pronouncement that the “province of the
court is, solely, to decide on the rights of individuals[.]” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 170 (1803) (emphasis added). The precept that follows here is that, under Article III, the
“federal courts are without power to decide questions that cannot affect the rights of litigants in
the case before them.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (internal quotation marks
omitted). “Thus, when a case at first presents a question concretely affecting the rights of the
parties, but—as a result of events during the pendency of the litigation—the court’s decision would
lack any practical effect, the case is moot.” Ohio v. EPA (“Ohio”), 969 F.3d 306, 308 (6th Cir.
2020).
A.
In deciding whether a decision in this appeal would have any “practical effect,” we must
be mindful of “the distinction between mootness as to a preliminary-injunction appeal and
mootness as to the case as a whole.” Ohio, 969 F.3d at 309. “The purpose of a preliminary
injunction, unlike a permanent one, is to prevent any violation of the plaintiff’s rights before the
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 5
district court enters a final judgment.” Id. Whether a preliminary-injunction appeal is moot,
therefore, depends on whether our decision would have any “practical effect” during that window
of time.
The plaintiffs face strong headwinds on that point, given that the State has already
rescinded the mandate that they ask us “preliminarily” to enjoin. Yet the plaintiffs argue that two
exceptions to the mootness doctrine apply here.
Voluntary Cessation. The first exception is that a defendant’s “voluntary cessation” of
challenged conduct moots a case only if there clearly is “no reasonable expectation that the alleged
violation will recur.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019) (cleaned
up). Here, for the challenged conduct to recur, the State need not reimpose the “selfsame” mandate
that it rescinded in June 2021. Ne. Fla. Chapter of Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 662 (1993) (emphasis omitted). But the State would need to impose
a mandate “similar” enough to the old mandate to present substantially the same legal controversy
as the one presented by the plaintiffs’ complaint. See id. at 662 n.3.
For several reasons, however, we see no reasonable possibility of that happening here.
First, the State rescinded the mask mandate not in response to this lawsuit, but eight months later,
along with several other pandemic-related orders. In doing so the State cited high vaccination
rates, low case counts, new treatment options, and warmer weather. This case is therefore unlike
Speech First, where the “timing” of the University of Michigan’s cessation of the challenged
conduct “raise[d] suspicions that its cessation [was] not genuine.” 939 F.3d at 769. And the
defendants’ own political accountability diminishes any chance that they would reimpose the same
mandate after this litigation ends.
Second, the relevant circumstances have changed dramatically since the Department
imposed its statewide mask mandate in October 2020. At that time, nobody was vaccinated and
treatments were less effective than they are now. The relevant circumstances now, in contrast, are
largely the same circumstances that prompted the State to rescind the mandate.
Third, any future masking order likely would not present substantially the same legal
controversy as the one originally presented here. Michigan imposed the first version of the
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 6
mandate at issue here before the U.S. Supreme Court had blocked any COVID-19 orders on free-
exercise grounds. The Supreme Court and other courts have since blocked any number of them,
thereby providing concrete examples of mandates and restrictions that violate the Free Exercise
Clause. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021); Roman Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68 (2020). The Court has also recently told us that
“government regulations” are subject to strict scrutiny under the Clause “whenever they treat any
comparable secular activity more favorably than religious exercise”; and that “whether two
activities are comparable for purposes of the Free Exercise Clause must be judged against the
asserted government interest that justifies the regulation at issue.” Tandon, 141 S. Ct. at 1296.
The plaintiffs’ claim here is thus based primarily on the particular exceptions in the State’s now-
rescinded mandate—the idea being that, if those secular actors deserve relief, then the parents
and children in this lawsuit do as well. See, e.g., id. at 1297; Roman Cath. Diocese, 141 S. Ct. at
67–68. This dispute is therefore moot unless there is a decent chance that the defendant officials
will not only impose a new mask mandate, but also roughly stick to the exceptions in the old one.
And that prospect is exceedingly remote given all that has happened in the year or so since the
State rescinded its mandate.
The plaintiffs emphasize that other government entities, like Ingham County, have imposed
mask mandates more recently. But Ingham County has since rescinded its mandate too. And the
question here is whether Michigan will reimpose the mask mandate on the School, not whether
some other entity will do so. See Chirco v. Gateway Oaks, L.L.C., 384 F.3d 307, 309–10, 310 n.1
(6th Cir. 2004).
During oral argument for this appeal, an amicus supporting plaintiffs offered another
argument as to why this claim remains live—namely, that Resurrection School’s principal
admitted to violating the mask mandate and thus potentially could be subject to prosecution in the
future. But arguments in support of justiciability can be forfeited. See California v. Texas, 141 S.
Ct. 2104, 2116 (2021); Glennborough Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410, 414
(6th Cir. 2021). And this argument was forfeited because it was raised for the first time at oral
argument. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009). The
argument is also meritless: the school’s principal is not a party here, and thus is not among the
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 7
“individuals” whose rights we must adjudicate. Marbury, 5 U.S. at 170. Nor is there any credible
threat of future prosecution. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165 (2014).
If the principal or anyone else is ever prosecuted for violating the State’s mandate, he can obtain
a ruling on the mandate’s constitutionality then.
Capable of Repetition Yet Evading Review. This exception is inapposite for largely the
same reasons the previous exception is. Here, the challenged mandate was a product of the
pandemic’s early stages, and the plaintiffs’ objections to it are grounded in the mandate’s
particulars. We are unlikely to see this mandate in a similar form again. See Thompson v. DeWine,
7 F.4th 521, 525–26 (6th Cir. 2021). The plaintiffs’ preliminary-injunction appeal is moot.
B.
Whether the claim as a whole is moot depends on whether there is “a fair prospect that the
[challenged] conduct will recur in the foreseeable future.” Ohio, 969 F.3d at 310. For all the
reasons recited above—the changed circumstances since the State first imposed its mask mandate,
the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no
reasonable possibility that the State will impose a new mask mandate with roughly the same
exceptions as the one originally at issue here. This claim is moot—indeed palpably so.
* * *
We dismiss this appeal and remand with instructions for the district court to dismiss this
claim. We also vacate the district court’s order denying the plaintiffs’ motion for a preliminary
injunction, given that they lost their chance to appeal its merits through no fault of their own. See
United States v. Munsingwear, 340 U.S. 36, 39 (1950).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 8
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CONCURRENCE
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KAREN NELSON MOORE, Circuit Judge, concurring. Three facts convince me that this
claim is moot. First, in the months since the State lifted the mask mandate, the Centers for Disease
Control has approved a vaccine for school-age children. FDA Authorizes Pfizer-BioNTech
COVID-19 Vaccine for Emergency Use in Children 5 through 11 Years of Age, Food & Drug
Admin. (Oct. 29, 2021), https://www.fda.gov/news-events/press-announcements/fda-authorizes-
pfizer-biontech-covid-19-vaccine-emergency-use-children-5-through-11-years-age. Second, the
State declined to reimpose a mask mandate during the spikes in COVID-19 cases caused by the
Delta and Omicron variants. See Tracking Coronavirus in Michigan: Latest Map and Case Count,
N.Y. Times (last updated May 25, 2022), https://www.nytimes.com/interactive/2021/us/michigan-
covid-cases.html. Third, and relatedly, the State has now gone close to a year without reimposing
a similar mask mandate. Therefore, I concur in the majority opinion.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 9
___________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
___________________________________________________
CHAD A. READLER, Circuit Judge, concurring in part and dissenting in part. I concur in
parts I and II.A of Judge Kethledge’s majority opinion, which hold that plaintiffs’ preliminary
injunction appeal is moot. But, for many of the reasons stated in Judge Bush’s thoughtful dissent,
I believe plaintiffs’ claims for declaratory relief and a permanent injunction remain alive. To my
mind, mootness of this appeal is distinguishable from mootness of the underlying claims.
Plaintiffs asked the en banc court to reverse the district court’s decision denying a
preliminary injunction. A preliminary injunction’s fundamental purpose is to protect the status
quo during litigation. See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam). As a
result, we lack jurisdiction over this appeal if there is no reasonable expectation that the state will
reenact the mandate (or something similar) before the district court enters final judgment. See
Ohio v. U.S. Env’t Prot. Agency, 969 F.3d 306, 309 (6th Cir. 2020).
By all accounts, there is little chance that the state will do so. The school year is in its
waning days, with summer break on the horizon. The calendar alone, in other words, dramatically
reduces the need for a school mask mandate. That is true even for students and staff involved with
summer instruction, as COVID-19 typically recedes during the summer, thereby lessening the need
for mask requirements. See Michigan Data, Mich. Dep’t of Health & Hum. Servs.,
https://www.michigan.gov/coronavirus/stats (last visited May 24, 2022) (displaying daily cases).
In fact, the state rescinded its mandate last June partly because “the warmer weather ha[s] greatly
reduced the spread of COVID-19.” Doc. 34-2. Absent any realistic prospect of a masking-related
burden on plaintiffs’ religious liberties before the school bell rings this fall, a preliminary
injunction “would lack any practical effect” during that period. Ohio, 969 F.3d at 308. Add in the
fact that the district court likely can resolve expeditiously the “primarily if not entirely legal” issues
that remain, and it becomes evident that plaintiffs’ preliminary injunction appeal is moot. Id.
at 309. On this latter point, I note that the district court has already performed much of the
necessary analysis in holding that the county’s school mask mandate likely violated the Free
Exercise Clause. Resurrection Sch. v. Hertel, No. 1:20-cv-1016, slip op. at 15–17 (W.D. Mich.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 10
Mar. 3, 2022); see also supra, at 5–6 (explaining that Tandon v. Newsom, 141 S. Ct. 1294 (2021)
(per curiam), and Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam), set the legal framework for plaintiffs’ Free Exercise challenge to the state’s mask
mandate).
“For the case as a whole, however, the mootness inquiry takes a longer view.” Ohio, 969
F.3d at 310. That means the district court has jurisdiction over plaintiffs’ claims for declaratory
relief and a permanent injunction unless the state shows that there is no “fair prospect” that it will
reenact the mandate “in the foreseeable future.” Id.; see also Speech First, Inc. v. Schlissel, 939
F.3d 756, 770 (6th Cir. 2019) (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000)).
Yet the state failed to make that showing. To the contrary, as Judge Bush explains, a real
possibility remains that the state will restore the mandate. Take last year as an example. Plaintiffs
enjoyed a respite from mask mandates for much of the summer of 2021 until Ingham County—
acting “in compliance with guidance” from the state—imposed its own school mask mandate that
September. R.80, PageID#1645. The majority and dissenting opinions disagree about whether
the county’s school mask mandate informs the issues before the en banc court. But at the very
least, those events offer some insight into how state officials might confront public health issues
as the upcoming summer turns to fall. See Ohio, 969 F.3d at 309 (noting that application of
mootness principles “is driven above all by practicalities”); see also Hawse v. Page, 7 F.4th
685, 699 (8th Cir. 2021) (Stras, J., dissenting) (“Whatever else we might be able to say about the
pandemic, absolute clarity is not one of its features.”). Indeed, we have it on good authority that
the state seemingly has not heeded the many lessons from the recent decisions in Tandon and
Monclova Christian Academy v. Toledo-Lucas County Health Department, 984 F.3d 477 (6th
Cir. 2020) (order). After all, when asked at oral argument whether the state would commit not to
reenact its earlier mandate, the state’s counsel bluntly responded: “Absolutely not.” Oral
Argument at 41:18–25; cf. Hawse, 7 F.4th at 699 (Stras, J., dissenting) (“[T]he court’s novel theory
that the County would not dare ‘flout the Supreme Court’s intervening pronouncements on equal
treatment between religious exercise and comparable secular activity’ . . . would be more
comforting if it were based on anything the County had actually done or said.” (citation omitted)).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 11
All things considered, I believe the preliminary injunction proceedings are moot. But
I would allow the district court to resolve plaintiffs’ claims for declaratory relief and a permanent
injunction, which seemingly involve a straightforward application of the rule that a regulation
treating religious exercise worse than any comparable secular activity must survive strict scrutiny.
See Tandon, 141 S. Ct. at 1296; Monclova, 984 F.3d at 480–82.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 12
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DISSENT
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JOHN K. BUSH, Circuit Judge, dissenting. “Article III judges should not be in the
business of declaring an end to the COVID-19 pandemic[.]” Memphis A. Philip Randolph Inst. v.
Hargett, 2 F.4th 548, 572 (6th Cir. 2021) (Moore, J., dissenting). Rather, we should be willing to
acknowledge “the thing about a once-in-a-century crisis”—that “it is hard to know how it will
develop over the coming months and years, particularly when COVID-19 has defied expectations
to this point[,] with new variants and seasonal surges threatening to undo hard-won progress.” Id.
at 573 (cleaned up). In this case, however, it appears that these principles will not carry the day.
A court majority instead deems moot not merely plaintiffs’ preliminary-injunction request, but
their entire case. Thus extinguished is plaintiffs’ opportunity to litigate their claims on the merits
under a proper interpretation of the First Amendment. That unfortunate result rests, in my view,
on a score of mistaken factual and legal premises. Our collective experience with two years of on-
again-off-again masking mandates demonstrates that there is at least a reasonable possibility this
dispute could recur. For that matter, the recent masking reimpositions in Ingham County itself
show that this dispute could reasonably recur. See Izzy Martin, “Waverly Community Schools
masking up starting Monday,” WLNS6.com (May 18, 2022), https://perma.cc/Z4MR-5JST; Izzy
Martin, “East Lansing Public Schools reinstates mask mandate,” WLNS6.com (May 13, 2022),
https://perma.cc/7SAW-WBY7; Sarah Lehr, “East Lansing schools reinstate mask mandate
beginning Monday,” WKAR.org (May 13, 2022), https://perma.cc/5SDN-V5WT. I therefore
respectfully dissent.
I.
The majority’s short opinion says little about the background of this case and, by virtue of
having deemed it entirely moot, nothing about its merits. My approach will differ. A grasp of the
underlying factual and procedural history is crucial to understanding the justiciability issues the
majority places at center stage. So before turning to mootness, I will detail the origins of plaintiffs’
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 13
First Amendment claims, how they should have been properly adjudicated by our circuit, and why
that never came to pass.
Resurrection School is a “small, private, Catholic school in Lansing,” a city itself in Ingham
County, Michigan. Amended Complaint ¶16, R. 21. The School strives “to integrate the Catholic
faith into all portions of the school day.” Id. ¶1. And it remained committed to doing so even
despite COVID-19. In response to the pandemic, the School implemented extensive “safety
protocols” to protect its students. Supplemental Appellant’s Br. at 6–7. Those included social
distancing, “enforced handwashing,” “strict sanitization and disinfection of its facilities several
times a day,” limitations on who could visit the school, and even a requirement that students “wear
masks in common areas.” Id. But when it came to masking during classroom instruction, the
School drew the line: no students would be forced to wear masks “when seated in the classroom.”
Amended Complaint ¶3, R. 21. As it explained, masks present “difficulties . . . for the spiritual,
emotional, and physical development of younger students.” Id. In particular, they impeded the
School’s religious instruction and violated a sincere religious obligation against covering faces
“made in God’s image and likeness.” Id. ¶25.
Those scruples notwithstanding, the Michigan Department of Health and Human Services
(“MDHHS”) promulgated orders in October 2020 that directly conflicted with the School’s
religious views. Each required that children “participating in gatherings” such as classroom
instruction be masked. And they contained no religious exemption. Rendered unlawful, then, was
Resurrection School’s continued practice of unmasked, face-to-face religious instruction.
The School responded soon after with a federal lawsuit challenging those orders. Its
operative complaint named as defendants Robert Gordon,1 then the Director of MDHHS; Dana
Nessel, the Attorney General of Michigan; Linda S. Vail, the Health Officer of the Ingham County
Health Department; and Carol A. Siemon, the Ingham County Prosecuting Attorney. The School
sought declaratory and injunctive relief against both MDHHS’s and Ingham County’s enforcement
of the restrictions, which the School alleged violated its and its co-plaintiffs’ First Amendment
1Upon Gordon’s departure from MDHHS, he was replaced by current MDHHS Director Elizabeth Hertel.
She thus entered the suit via the automatic-substitution rule. See Fed. R. App. P. 43(c)(2).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 14
rights. Yet despite its knowledge of this religious objection, MDHHS continued to promulgate
masking orders that contained no exemption for face-to-face religious instruction.
The basic structure of the order that became the crux of this case was as follows. First,
section 7—titled “Face mask requirement at gatherings”—explained in subsection (a) that “All
persons participating in gatherings are required to wear a face mask.” But section 8—titled
“Exceptions to face mask requirements”—then enumerated a host of activities exempted from
masking. In the order’s own words:
Although a face mask is strongly encouraged even for individuals not required to
wear one (except for children under the age of 2), the requirement to wear a face
mask in gatherings as required by this order does not apply to individuals who:
(a) Are younger than 5 years old, outside of a child care organization or camp
setting (which are subject to requirements set out in section 7(e));
(b) Cannot medically tolerate a face mask;
(c) Are eating or drinking while seated at a food service establishment or at a
private residence;
(d) Are exercising outdoors and able to consistently maintain six feet of distance
from others;
(e) Are swimming;
(f) Are receiving a medical or personal care service for which removal of the face
mask is necessary;
(g) Are asked to temporarily remove a face mask for identification purposes;
(h) Are communicating with someone who is deaf, deafblind, or hard of hearing
and whose ability to see the mouth is essential to communication;
(i) Are actively engaged in a public safety role, including but not limited to law
enforcement, firefighters, or emergency medical personnel, and where wearing
a face mask would seriously interfere in the performance of their public safety
responsibilities;
(j) Are engaging in a religious service;2
2Of note, MDHHS did not consider Resurrection School’s face-to-face religious instruction to qualify for the
“religious service” exemption. To the contrary, it apparently construed “service” to include only more formalized
worship settings, such as a sermon. Thus, as counsel for the State seemed to confirm at oral argument, the order would
permit Resurrection School’s students to attend Mass on campus unmasked, and yet would bar the very same students
from attending face-to-face religious instruction in the classroom unmasked. See Recording of Oral Arg. at 1:03:40–
1:07:13.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 15
(k) Are giving a speech for broadcast or to an audience, provided that the audience
is at least 12 feet away from the speaker; or
(l) Are participating in a testing program specified in MDHHS’s document entitled
Guidance for Athletics . . . and are engaged in practice or competition where
the wearing of a mask would be unsafe.
See “March 5, 2021 Gatherings and Face Mask Order,” Michigan.gov (Mar. 5, 2021),
https://perma.cc/MK89-DGZU.
This order then detailed several additional provisions exempting various other secular
activities from the masking requirement. For instance, a separate portion concerning subsection
(f)—the “personal care services” exemption—defined that term to include such “non-essential
personal care services” as “hair, nail, tanning, massage, traditional spa, tattoo, body art, piercing
services, and similar personal services.” See id. Likewise, both collegiate and professional
athletes were permitted to compete unmasked. See Becket Amicus Br. at 10 n.12; see also “Interim
Guidance for Athletics,” Michigan.gov (Apr. 1, 2021), https://perma.cc/U42B-3E3F (explaining
that athletes with negative COVID tests were permitted to compete unmasked).
Read together, the orders and guidance thus established both a facially neutral and
generally applicable masking requirement on the one hand, and, on the other, a host of secular
exemptions to that requirement that undermined its purported general applicability. Indeed,
everyone here agrees that the broad language of section 7 swept in Resurrection School’s
classroom instruction. But everyone also agrees that the companion provision, section 8, exempted
from that language dining at a restaurant; dining with friends at a private gathering; receiving a
haircut, tattoo, or massage; sessions in a tanning booth; or the installation of a nose-ring.
Predictably, in response to that obvious disparity, Resurrection School moved the district court to
enter a preliminary injunction as the parties litigated the case.
The district court denied that request, however, in mid-December 2020. It reasoned that
the relevant analytical framework arose from this circuit’s published decision in Commonwealth
v. Beshear, rendered just a few weeks earlier. See Resurrection Sch. v. Gordon, 507 F. Supp. 3d
897, 900 (W.D. Mich. 2020) (citing Commonwealth v. Beshear, 981 F.3d 505, 508–09 (6th Cir.
2020)). Citing Beshear and a handful of other cases, the district court explained that a restriction
on religious exercise triggers strict scrutiny when it is (1) motivated by animus, (2) regulates
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 16
religious activity as such, or (3) is neutral and generally applicable on its face but simultaneously
so full of exemptions for comparable secular activities that it lacks neutrality and general
applicability in practice. Id. at 901. Beshear itself had applied that tripartite test to a COVID-
related closure the Kentucky government had imposed upon a religious school. Beshear, 981 F.3d
at 507–09. Discerning neither animus nor targeting, Beshear focused its inquiry on general
applicability. Id. at 509. But it reasoned that the contested order in that case was generally
applicable, given that it “applie[d] to all public and private elementary and secondary schools in
the Commonwealth, religious or otherwise[.]” Id. Because the order treated the religious school’s
identical secular comparator equally, Beshear reasoned, its incidental effect on religious exercise
“need not be justified by a compelling governmental interest.” Id. And so Beshear determined
that the contested orders likely presented no First Amendment violation. Id. at 509–10.
In the district court’s view, Beshear similarly disposed of Resurrection School’s challenge
to MDHHS’s analogous masking order. See Resurrection Sch., 507 F. Supp. 3d at 901–02. True,
it noted, the order permitted those engaging in copious other secular activities to do so unmasked.
Id. at 902. But the order also treated Resurrection School and its identical secular comparator—
public schools—the very same. Id. (“[T]he exceptions apply to public schools and private schools
equally, and they apply to secular schools and religious schools equally.”). Thus, the district court
reasoned, plaintiffs’ showing of merely an “incidental” burden undercut their “likelihood of
success on the merits,” and so it denied relief. Id. Plaintiffs appealed that decision soon after.
Yet as their case was pending before a panel of this circuit, three precedential developments
unfolded that were favorable for the School’s position. First was our circuit’s decision in
Monclova. 984 F.3d 477 (6th Cir. 2020). Like Beshear, and like this case, Monclova concerned
a COVID restriction imposed upon religious schools, and against which they raised a First
Amendment objection. Id. at 479. Specifically, the Toledo-Lucas County Health Department had
ordered the shutdown of every school in its jurisdiction—public, private, and parochial—“to slow
the spread of COVID-19.” Id. So just as in Beshear, the restriction applied both to religious
exercise and to its identical secular analogues. Id. But at the same time, Monclova noted, the
County had not imposed its shutdown order upon a host of secular activities—“gyms, tanning
salons, office buildings, and a large casino”—all of which posed at least comparable risks to public
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 17
health. Id. at 479, 482. In other words, Monclova rejected Beshear’s assumption that general
applicability should be assessed solely by considering whether the restriction burdens identical
secular conduct. See id. at 481 (“We find no support for that proposition in the relevant Supreme
Court caselaw.”). To the contrary, Monclova reasoned that other “similar” and “comparable
secular facilities” were relevant to the general-applicability analysis. Id. at 480. And, discerning
no compelling rationale for the County’s preferential treatment of those comparable secular
activities, Monclova held the religious schools likely to succeed in showing a First Amendment
violation. Id. at 482.
So why was all that consistent with Beshear—an earlier, published decision? Future panels
are bound only by prior panels’ holdings—the reasoning found in the earlier decision that both
“contribute[d] to the judgment” and on which it is “clear” the earlier court “consciously reached a
conclusion.” Wright v. Spaulding, 939 F.3d 695, 701–02 (6th Cir. 2019). Yet as Monclova itself
explained, Beshear “said nothing about the question” at issue in Monclova: “namely, whether an
order closing public and parochial schools violates the [Free Exercise] Clause if it leaves other
comparable secular actors less restricted than the closed parochial schools.” Monclova, 984 F.3d
at 481. Unconstrained by Beshear on that issue, therefore, Monclova analyzed whether the
relevant order was generally applicable when judged against not only the burdens placed upon the
religious school’s identical secular analogues, but also upon other, at least similar secular
comparators. Id. at 481–82. Monclova then reasoned that because Lucas County had shuttered a
religious school while exempting “gyms, tanning salons, office buildings, and the Hollywood
Casino,” its order was subject to, and likely failed, strict scrutiny. Id. at 482.
A few months after Monclova came the second development: the Supreme Court, in
Tandon v. Newsom, endorsed the same analytical framework as detailed in Monclova. 141 S. Ct.
1294 (2021); see id. at 1296. Tandon concerned yet another COVID restriction; this time,
California’s bar on multiple-family at-home religious gatherings. Id. at 1297. Despite that
restriction, California simultaneously exempted “hair salons, retail stores, personal care services,
movie theaters, private suites at sporting events and concerts, and indoor restaurants.” Id. at 1297.
If Beshear were the law, of course, none of those facts would have mattered to the Supreme Court.
Instead, much like the Ninth Circuit below, it would have examined merely how California treated
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the proscribed conduct’s identical secular analogues—multiple-family at-home gatherings (for
instance, a book club) to discuss secular works. See Tandon v. Newsom, 992 F.3d 916, 920 (9th
Cir. 2021). Beshear would have dictated that those secular activities were the only relevant
comparators, as only those activities would have presented identical risks to at-home religious
gatherings. Yet that is precisely not how the Supreme Court reasoned. It instead deemed the
exempted secular activities like hair salons and restaurants “comparable” to the religious
gatherings, given that each imposed risks at least “similar.” Tandon, 141 S. Ct. at 1296–97. And
thus it held that California’s failure to regulate such secular activities as harshly as it had in-home
religious gatherings rendered its regime likely unconstitutional. Id. at 1297.
Following Tandon was the third development: the Supreme Court’s decision in Fulton v.
City of Philadelphia, which augmented the general-applicability principles detailed in Tandon.
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). In Fulton, the Court confronted the City
of Philadelphia’s refusal to contract with Catholic Social Services (“CSS”), a foster-care services
provider, because of CSS’s sincerely held religious belief that same-sex couples should not be
certified as prospective foster families. Id. at 1875. The City ended its fifty-year relationship with
CSS because of its strong interest, or so it asserted, in opposing anti-homosexual discrimination.
Id. Yet the City’s “standard foster care contract” that it had signed with CSS specified that the
City Commissioner, in his “sole discretion,” could grant certain organizations of his choosing an
exemption from that general policy. Id. at 1878. CSS’s sincere religious objection to same-sex
foster couples was apparently deemed an unworthy rationale for the dispensing of such relief. Id.
So CSS sued, and the Supreme Court took up its case.
In its unanimous ruling for CSS, the Court reaffirmed Tandon’s conclusion that a law
“lacks general applicability if it prohibits religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a similar way.” Id. at 1877. It thus seemed that
CSS had a powerful argument that the Commissioner’s ability to exempt organizations from the
anti-discrimination rule refuted the regime’s general applicability. After all, the contract
apparently allowed the Commissioner to dispense exemptions for secular rationales that would
have undermined the City’s anti-discrimination interest in precisely the same way as would have
an exemption for CSS. Id. at 1881–82. But the Court went even further in criticizing
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Philadelphia’s regime. As it explained, the contract’s provision conferring executive discretion to
grant secular exemptions removed the law entirely from the framework established by Employment
Division v. Smith, 494 U.S. 872 (1990), under which facially general laws are presumptively valid.
Fulton, 141 S. Ct. at 1878. To the contrary, the executive-discretion provision made the contract
more like an individualized exemption scheme, which the Court held long ago in Sherbert v.
Verner was presumptively invalid and subject to strict scrutiny. Id.; see also Sherbert v. Verner,
374 U.S. 398, 403 (1963); Smith, 494 U.S. at 884 (“[W]here the State has in place a system of
individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’
without compelling reason.”). And because the City could “offer[ ] no compelling reason why it
ha[d] a particular interest in denying an exception to CSS while making them available to others,”
the Court deemed the City’s refusal to contract with CSS unable to satisfy that standard. Fulton,
141 S. Ct. at 1882.
II.
Heading into their argument for this case, therefore, Resurrection School’s lawyers must
surely have felt armed with a formidable new degree of precedential firepower. Monclova had
deemed likely invalid a governmental restriction on religious schools that failed to regulate
comparable (but non-identical) secular conduct. 984 F.3d at 482. Tandon had then ratified that
rule by explaining how California’s regulations on at-home religious gatherings were likely invalid
for their failure to equally burden “comparable” conduct in hair salons, personal-care-service
venues, and restaurants. 141 S. Ct. at 1297. Fulton then buried the “only-identical-secular-
conduct-counts” theory of general applicability, while simultaneously explaining that a regime
conferring executive discretion to codify new secular exemptions from a purportedly general law
(much as with MDHHS’s continuous revisions of its orders to exempt new categories of secular
conduct), merited strict scrutiny. See, e.g., Fulton, 141 S. Ct. at 1879 (“The creation of a formal
mechanism for granting exceptions renders a policy not generally applicable, regardless whether
any exceptions have been given, because it ‘invite[s]’ the government to decide which reasons for
not complying with the policy are worthy of solicitude[.]”).
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Surprisingly, however, the panel majority in this case attempted to weave around each of
those precedents to affirm the district court’s denial of preliminary relief.3 The panel majority
recognized, of course, that under the rule of decision established in Monclova, it would have had
to consider the order’s exemptions for comparable (but non-identical) secular conduct when
assessing whether the restriction upon Resurrection School was generally applicable. See
Resurrection Sch. v. Hertel, 11 F.4th 437, 456–57 (6th Cir. 2021), vacated 16 F.4th 1215 (6th Cir.
2021). But the panel majority declined to apply Monclova on the ground that it conflicted with an
earlier, published decision of the Sixth Circuit—Commonwealth v. Beshear. Id. at 457 (citing
Beshear, 981 F.3d at 505). In response to Monclova’s point that Beshear never actually rejected
the relevance of non-identical secular comparators, the panel majority claimed that, to the contrary,
“[i]n Beshear, we did consider whether the appropriate comparator was other non-religious schools
or other non-school entities and held that the former was the appropriate comparator.” Id.
(emphasis added).
How did the panel majority attempt to sustain such a claim? By pointing to some of the
briefs from Beshear that had suggested a broader comparator analysis. Id. Thus, the panel
majority reasoned, because the “issue was brought to the attention of the court,” Beshear had
apparently implicitly rejected Monclova’s comparator analysis. Id. (cleaned up). And under the
law-of-the-circuit doctrine, in the panel majority’s words, when “[f]orced to choose between
conflicting precedents, we must follow the first one.” Id. (quoting United States v. Jarvis, 999 F.3d
442, 445–46 (6th Cir. 2021)). So the panel majority understood Beshear—not Monclova—to
represent the law of the Sixth Circuit. Id.What about Fulton? That precedent would seem to contain a powerful indictment of
MDHHS’s ever-shifting exemption scheme, as “it ‘invite[d]’ the government to decide which
3I realize that as a technical jurisdictional matter under 28 U.S.C. § 1292(a)(1), we as the en banc court are
reviewing the preliminary-injunction decision of the district court rather than the panel majority’s subsequent
affirmation of that decision. I include a discussion of the panel majority’s analysis for two reasons. First, exposition
of the panel majority’s errors is required for an exposition of the proper First Amendment standard that should have
governed Resurrection School’s claims—a standard on which today’s majority opinion has necessarily shed no light
given its conclusion that the entire case is nonjusticiable. Second, the panel majority’s reasoning here—particularly
its view that MDHHS’s order was lawful even under Tandon—guts the present majority’s argument in favor of
mootness that Tandon rendered a future MDHHS-style order so unthinkable that it could never recur.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 21
reasons for not complying with the policy [we]re worthy of solicitude.” Fulton, 141 S. Ct. at 1879.
For instance, after initially instituting its masking order in October 2020, MDHHS later decided
that it should codify new secular exemptions for “‘personal care services, like tanning and
piercing[s].” Majority Op. at 4. Yet as MDHHS exercised its discretion to dispense favorable
treatment for such secular activities, its various revisions to the policy steadfastly refused to codify
an analogous religious exemption for entities like Resurrection School. And it withheld such equal
treatment even after gaining actual knowledge of the School’s sincere religious objections to the
masking policy, first explained in the School’s federal complaint against MDHHS filed in October
2020.
For the panel majority, however, Fulton appears to have been thought virtually irrelevant.
Its opinion included no substantive analysis of Fulton’s holding, instead simply reciting Fulton’s
basic facts while making no attempt to apply that case’s executive-discretion principle to
Michigan’s masking regime. See Resurrection Sch., 11 F.4th at 458–59. The Supreme Court’s
decision was ultimately dismissed as containing merely a “narrow holding focused on a contract
provision.” Id. at 459.
And what about Tandon? As an on-point Supreme Court decision, it obviously would seem
to supply the relevant analytical framework, no matter a putative conflict between Monclova and
Beshear. Not so, however, at least according to the panel majority. As it expressly claimed,
“Tandon v. Newsom does not compel a different comparator.” Id. at 457 (citing Tandon, 141 S. Ct.
at 1294). That was supposedly because the Supreme Court had deemed California’s regime likely
invalid for treating “comparable secular activities more favorably than at-home religious
exercise[.]” Id. Yet the panel majority reasoned that no other exempted secular activities under
the MDHHS order were even comparable to face-to-face religious instruction. Id. The risks posed
by schools were instead “unique,” since only schools brought children together “in an indoor
setting and every day.” Id. at 457–58. As a result, the only proper comparator to Resurrection
School remained its identical secular analogues—“public and private non-religious schools.” Id.
at 458.
Of course, that analysis is patently inconsistent with the Supreme Court’s reasoning in
Tandon, which would have dictated that non-identical secular comparators be considered as well.
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Tandon, 141 S. Ct. at 1296–97. Rather, the panel majority’s approach tracked almost perfectly
with the district court and Ninth Circuit’s reasoning in Tandon that the Supreme Court itself
rejected. Indeed, in denying relief—and foreshadowing the exact language the panel majority here
would later employ—the district court there reasoned that the “unique” risks of at-home religious
gatherings made secular at-home gatherings the only valid comparator. See Tandon v. Newsom,
517 F. Supp. 3d 922, 976 (N.D. Cal. 2021). And the restrictions were generally applicable, said
the Tandon district court, since California treated each form of gathering equally. Id. A divided
panel of the Ninth Circuit then doubled down on that conclusion. It too reasoned that the only
valid comparator to religious at-home gatherings was secular at-home gatherings, given that only
secular at-home gatherings posed identical risks. Tandon, 992 F.3d at 920. For instance, vis-à-vis
California’s less-regulated “train stations, malls, salons, and airports,” at-home gatherings were
more likely to involve “prolonged conversations” in “less ventilated” settings. Id. at 923, 925.
And because California regulated equally both religious and secular at-home gatherings, the Ninth
Circuit concluded as well that the religious restriction merited mere rational-basis review. Id. at
920. Yet the Supreme Court unequivocally rejected such reasoning in its own opinion on the
dispute. See Tandon, 141 S. Ct. at 1296–97. Tandon, therefore, should have indicated to the panel
majority that its refusal to consider a broader class of comparators was misguided.
And perhaps it did. Lacking conviction in its parsimonious reading of Tandon, apparently,
the panel majority claimed that even if it were required to embrace a “broader conception of
comparable secular activity, the MDHHS orders [we]re not so riddled with secular exceptions as
to fail to be neutral and generally applicable.” Resurrection Sch., 11 F.4th at 458. So the
underlying premise from which the panel majority reasoned is that there can exist some arbitrarily
large number of exemptions disparately favoring secular conduct but that pose no First
Amendment concern, at least until the exemptions can be deemed to “riddle” the challenged law.
Id. This supposition stands in obvious tension with Tandon, which explained that “government
regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the
Free Exercise Clause, whenever they treat any comparable secular activity more favorably than
religious exercise.” Tandon, 141 S. Ct. at 1296. Thus, it is difficult to understand how the panel
majority thought itself correctly applying Tandon here. Its purported “application” of Tandon
simply concluded that none of the exempted secular activities was comparable to face-to-face
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 23
religious instruction—a rehashing of its earlier point that such instruction posed “unique” risks
and thus could be compared only to its perfect secular analogue. Resurrection Sch., 11 F.4th at
458.
In any event, none of the panel majority’s second-order attempts to distinguish
Resurrection School’s face-to-face instruction from the various secular activities MDHHS
exempted can withstand analytical scrutiny. Take first, for instance, the panel majority’s
rationalization of the exemptions for eating, drinking, swimming, and medical treatments—said to
be “inherently incompatible with wearing a mask.” Id. at 458 (cleaned up). The apparent
implication of this comment is that those activities are physically impossible while wearing a mask
and thus are “inherently incompatible,” while simultaneous masking and religious instruction is
physically possible, and thus “compatible.” Id.
Yet the problems with this argument are legion. Resurrection School has consistently
asserted that simultaneous masking and proper religious instruction is physically impossible, given
that seeing students’ faces is critical to the school’s religious instruction. See, e.g., Amended
Complaint ¶¶26–35, 130–32, R. 21; Appellant’s Br. at 13–14. Likewise, it has also asserted that
simultaneous masking and religious instruction is spiritually impossible, since it violates its
school-members’ sincere religious beliefs. Id. The panel majority’s conclusion that masking and
religious instruction are “compatible” after all seems predicated on nothing more than a judicial
reappraisal of what Resurrection School’s religious scruples do and do not permit. See
Resurrection Sch., 11 F.4th at 458 (describing plaintiffs’ sincere religious objection to masked
instruction as rendering masking merely “undesirable” for them).4 For good reason, however, the
Supreme Court has long instructed that this inquisitorial behavior is inappropriate for a federal
tribunal. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to
others in order to merit First Amendment protection.” (quoting Thomas v. Rev. Bd. of Ind. Emp.
4Note the logical implication of this argument for religious liberty more broadly. It was physically possible
for the schoolchildren in Barnette, for instance, to salute the flag, even though doing so would have violated their
sincere religious beliefs. See W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 24
Sec. Div., 540 U.S. 707, 714 (1981)); see also United States v. Ballard, 322 U.S. 78, 85–88 (1944)
(holding that courts may not inquire into the truth or falsity of sincerely held religious beliefs).
Other alleged distinctions the panel majority marshaled to justify the favorable treatment
of the exempted secular activities included that they either (a) involved interactions “short[er] in
duration” than classroom instruction or (b) had “a stringent social distancing requirement.”
Resurrection Sch., 11 F.4th at 458. Supposed distinction (b) is difficult to even understand.
Resurrection School itself had a “stringent social distancing requirement”—including during
classroom instruction—as the School repeatedly explained in its briefs. See Appellant’s Br. at 15–
16, 29, 33–34; Corrected Reply Br. at 1, 4. If anything, then, that both the School and certain of
the exempted secular activities had a social-distancing requirement would make them more alike
for comparator analysis, not less. Supposed distinction (a) is probably true for at least certain of
the secular exemptions, like briefly lowering a mask when voting for identification purposes. But
it hardly could be said to characterize all the secular activities the orders exempted. For instance,
the orders would permit someone engaging in secular activities to spend all day unmasked while
indoors: breakfast at a diner; then a haircut; then lunch; then a massage, piercing, or tattoo; then
dinner. By contrast, a student attending Resurrection School necessarily could not have spent the
full day unmasked. Masks were required while walking into the school and while walking in
common areas, such as in hallways between classes. Supplemental Br. at 6. It was only during
classroom instruction itself that masks were asserted to conflict with religious instruction. See id.
at 6–7; Amended Complaint ¶¶26–35; 130–32. So the panel majority’s claim that Resurrection
School would pose “unique” dangers if granted an analogous exemption cannot be sustained on
these alternative grounds either. Resurrection Sch., 11 F.4th at 457.
The panel majority last asserted that certain other secular exemptions—for police, fire, and
emergency medical services—were distinguishable (a) because they were necessary to fulfill
“important obligations” to “citizens’ health and safety” and (b) because “wearing a face mask
would seriously interfere in the performance of their public safety responsibilities.” Id. at 458.
(emphasis deleted). Yet each of these purported distinctions rests, once again, not on any known
precept of legal reasoning, but instead a value judgment that Resurrection School’s religious views
are neither an “important obligation[ ]” nor sincerely held. Id. Only by entertaining the first
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 25
supposition could the panel majority have concluded that unmasked, face-to-face religious
instruction does not serve an “important obligation[ ].” Id. And only by entertaining the second—
that the School’s religious beliefs are insincere—could the panel majority have concluded that
masking does not “seriously interfere” with the School’s religious mission. Id. at 458. These
implicit premises went unstated of course, for reasons about which I will not speculate, other than
to note that they clearly conflict with established Supreme Court precedent concerning inquisition
into the sincerity of religious views. See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531;
Thomas, 450 U.S. at 714; Ballard, 322 U.S. at 88.
Thus was the world as we knew it in August 2021, after the panel decision emerged. The
panel majority considered Beshear controlling, Monclova but a nullity under the law-of-the-circuit
doctrine, Tandon to compel no “different comparator,” and Fulton’s “narrow holding” seemingly
irrelevant per se. See Resurrection Sch., 11 F.4th at 457–59. With nowhere left to go but a petition
for certiorari or rehearing en banc, Resurrection School availed itself of the latter path in the hope
that it might vindicate its rights at last against MDHHS’s illegal order.
III.
And, for good reason, we granted that request. See Resurrection Sch. v. Hertel, 16 F.4th
1215, 1216 (6th Cir. 2021). Given the clear conflict among Beshear, Monclova, and the panel
decision in this case, rehearing en banc became “necessary to secure and maintain [the] uniformity
of the court’s decisions.” See Fed. R. App. P. 35(b)(1)(A). And given the additional tension
between the panel decision and Tandon, rehearing en banc was likewise necessary to restore our
precedent’s conformity “with a decision of the United States Supreme Court.” Id. Unfortunately,
however, today’s majority has achieved neither task. By declaring plaintiffs’ entire case
nonjusticiable, the majority has necessarily said nothing about the proper rule of decision for First
Amendment claims and nothing about whether Beshear or Monclova represents the law of our
circuit. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). That decision is
wrong as a matter of both substance and procedure, and I shall now explain why.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 26
A. MDHHS’s and Ingham County’s Voluntary Cessation of the Restrictions Did Not Moot
the Case, and their Orders are Capable of Repetition, Yet Evading Review
The leading edge of the majority’s argument that Resurrection School’s challenge is now
moot arises from the fact that MDHHS rescinded its masking order “almost a year ago” in June
2021. Majority Op. at 2.5 True, Resurrection School is not subject to MDHHS’s order at present.
But as the Supreme Court has repeatedly explained—in the very context of COVID restrictions,
no less—a defendant’s voluntary cessation of challenged conduct cannot alone moot a case. See
Tandon, 141 S. Ct. at 1294 (“[E]ven if the government withdraws or modifies a COVID restriction
in the course of litigation, that does not necessarily moot the case.”); see also Already, LLC v.
Nike, 568 U.S. 85, 91 (2013) (“[A] defendant cannot automatically moot a case simply by ending
its unlawful conduct once sued.”); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.
2012, 2019 n.1 (2017) (holding that because the defendant had “not carried the ‘heavy burden’ of
making ‘absolutely clear’ that it could not revert to its [prior] policy,” the controversy was not
moot); Friends of the Earth, Inc. v. Laidlaw Env. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)
(“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the practice.” (cleaned up)). Rather, such
voluntary cessation moots the case only if the party claiming mootness—here, defendants—meets
its “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur.” Already, LLC, 568 U.S. at 91 (quoting Friends of the Earth,
Inc., 528 U.S. at 190).
Likewise, the cessation of challenged conduct also cannot moot a case when that conduct
is “capable of repetition, yet evading review.” Kingdomware Tech., Inc. v. United States, 579 U.S.
162, 170 (2016) (quoting Spencer v. Kenma, 523 U.S. 1, 17 (1998)). This additional doctrine6
5Note how MDHHS’s order was already withdrawn by the time the panel majority adjudicated its legality in
August 2021. Ironically, the panel majority first had to conclude that the mandate was capable of repetition, yet
evading review and that defendants’ voluntary cessation did not moot the case in order to deny the religious-liberty
claim. See Resurrection Sch., 11 F.4th at 452 (holding that defendants’ voluntary cessation did not moot the case
because it is not “‘absolutely clear’ that [defendants] will not reimpose a mask requirement” and because “[p]laintiffs’
claims further come within the exception to the mootness doctrine for actions that are ‘capable of repetition, yet
evading review.’”).
6The voluntary cessation and capable of repetition, yet evading review doctrines are sometimes called
“exceptions” to Article III mootness. See, e.g., Resurrection Sch., 11 F.4th at 449. I find this term misleading, as it
implies that the doctrines would permit a federal court to spuriously enjoin some contested behavior that was certain
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 27
becomes relevant when two conditions apply: “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subject to the same action again.” Kingdomware Tech., Inc.,
579 U.S. at 170 (cleaned up) (quoting Spencer, 523 U.S. at 17); see also Weinstein v. Bradford,
423 U.S. 147, 148 (1975). No one here much contests that MDHHS’s order satisfies element 1—
and for good reason. The Supreme Court has held that a period of even “two years is too short to
complete judicial review of the lawfulness” of challenged conduct. Kingdomware Tech., Inc.,
579 U.S. at 170 (citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911)). So our only
dispute concerns element 2—whether there exists a reasonable possibility that MDHHS could
subject Resurrection School to a masking restriction once again. Id.Indeed, as the majority itself notes, a reasonable possibility of recurrence is the critical
inquiry around which both the relevant doctrines—voluntary cessation and capable of repetition,
yet evading review—coalesce in this case. Majority Op. at 5–7. In the majority’s view, however,
neither doctrine absolves the preliminary-injunction request (or even the case itself) of mootness,
as there is “no reasonable possibility” that MDHHS could again subject Resurrection School to
the challenged restriction. Id. at 7. The majority’s conclusion appears to rest upon four principal
arguments: (1) defendants’ good-faith rescission of the order and “political accountability” show
that MDHHS would not reimpose a mandate; (2) Ingham County’s orders—rescinded only in
February—are irrelevant to the litigation against MDHHS; (3) the changed legal landscape after
Tandon shows that no reasonable officer would reimpose an MDHHS-style order; and (4) the
threat from COVID-19 has abated such that there is “no reasonable possibility” MDHHS (or
Ingham County) could reimpose a mandate. Id. at 5–7. As explained below, however, none of
these proffered rationales can withstand serious scrutiny.
never to recur. Federal courts, of course, do not have the power to render advisory opinions. See Preiser v. Newkirk,
422 U.S. 395, 401 (1975). But the two aforementioned doctrines, in my view, are consistent with that principle,
because they “merely recognize a shift from a present harm to a potential future harm.” Tyler B. Lindley, The
Constitutional Model of Mootness, 48 BYU L. Rev. __ (draft at 1) (forthcoming 2023),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4050643. In this sense, the “exceptions are not really exceptions
at all,” given that it is uncontroversial Article III courts may dispense remedies to mitigate potential future harms. Id.;
see, e.g., Ex parte Young, 209 U.S. 123 (1908). So I do not consider myself to be advocating for the application of
true “exceptions” to Article III in these pages; rather, I believe that whether “the harm recurs in the future” from a
mask mandate “is likely enough” here “to satisfy the requirements of Article III.” Lindley, supra, draft at 8.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 28
1. Claim One: Good-Faith Rescission and “Political Accountability”
The first reason given for why the case is extinguished is that MDHHS rescinded its order
months rather than weeks after being sued, supporting an inference of good-faith rescission under
Speech First, and that, as well, “defendants’ own political accountability” would prevent them
from reimposing a similar restriction. Id. at 5 (citing Speech First, Inc. v. Schlissel, 939 F.3d 756,
769 (6th Cir. 2019)). I will address those points in turn.
As to good faith, the Speech First decision actually undermines the majority’s reasoning
rather than supporting it. That case concerned a First Amendment challenge levied against the
University of Michigan Office of Student Conflict Resolution’s (“OSCR”) overbroad definitions
of the terms “harassing” and “bullying.” Speech First, Inc., 939 F.3d at 762. About a month after
the challengers filed suit, OSCR removed the objectionable definitions from its website, so the
district court deemed the case moot. Id.; see also Speech First, Inc. v. Schlissel, 333 F. Supp. 3d
700, 714 (E.D. Mich. 2018) (explaining the timeline of the definitions’ removal). In reversing that
determination, however, we evaluated not merely one factor (good faith), but four: good faith; the
University’s refusal to disavow reenactment of the challenged definitions; the rescission’s status
as a “discretionary[ ] and easily reversible action[ ]”; and the definitions’ continued defense by the
University. Speech First, Inc., 939 F.3d at 768–70. So how does MDHHS’s behavior fare under
the framework that Speech First established? Not so well. The “good faith” contention as a
rationale for a mootness finding makes little sense in this context, and the latter three factors from
Speech First clearly cut against the majority’s position.
Good Faith. A defendant’s bad-faith rescission—rescission done as in Speech First itself
to purposefully evade judicial review—is no doubt insufficient by itself to moot a case. The
majority’s non sequitur here is to argue the reverse—that because MDHHS’s rescission was done
in apparent good faith, MDHHS thus will never reimplement the restriction. In the context of this
case, however, there is no necessary relationship between those two propositions. Indeed,
MDHHS could have rescinded its orders in perfectly good faith and yet could still reinstitute them
in perfectly good faith as well. Why? Because MDHHS did not rescind its orders on the ground
that they might conflict with the First Amendment—a matter of legal principle not contingent on
shifting real-world conditions. The agency instead cited improving factual circumstances
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 29
surrounding COVID-19. Because those circumstances could change—and, in fact, are changing—
the agency could reinstitute its orders in light of updated circumstances, even if its earlier rescission
had been in good faith under previous circumstances. Merely that MDHHS’s rescission occurred
in alleged good faith in response to one set of facts, in other words, tells us nothing about whether
MDHHS could reinstitute its orders in light of some different set of facts. So what about the other
three considerations mentioned above?
A Refusal to Disavow Reenactment. As we recognized in Speech First, a defendant’s
failure to “affirmatively state[ ] that it does not intend to reenact the challenged” provision counsels
against a finding of mootness. Id. at 769. Thus, we held that the mere absence in the record of
the University’s disavowal of its prior, constitutionally suspect definitions created an inference
that they could be reenacted. Id. Here, by contrast, we confront no uncertainty about whether
MDHHS has disavowed reimposition of its masking order. To the contrary, MDHHS’s counsel at
oral argument explicitly refused to disavow its reimposition. The Court pressed counsel on this
point directly, asking, “Are you willing to commit today that the state won’t reenact its prior rule?”
Recording of Oral Arg. at 41:18–41:25. Counsel’s response was emphatic: “Absolutely not.” Id.
So Resurrection School’s argument on this factor is even stronger than was Speech First’s. There
is no uncertainty about whether MDHHS has or might disavow reinstitution of its mask mandate;
cf. Speech First, 939 F.3d at 769, it already categorically told us that it is keeping the option of
another mandate on the table.
A Discretionary and Easily Reversible Action. Additionally, Speech First recognized a
key distinction between rescission effected by the legislature’s passing of a new law versus merely
an executive body’s “discretionary[ ] and easily reversible” withdrawal of some contested
restriction. Id. at 768. As we there explained, when “the government voluntarily ceases its actions
by enacting new legislation or repealing the challenged legislation, that change will presumptively
moot the case”—a concept that we referred to as the judicial “solicitude” afforded the legislature’s
decision. Id. By contrast, however, the “easily reversible” cessation of an executive-branch action
does not presumptively moot a case. Id. Rather, “significantly more than [such] bare solicitude
itself is necessary to show that the voluntary cessation moots the claim.” Id. (emphasis added).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 30
The import of this distinction for today’s dispute? Counsel for MDHHS conceded at oral
argument that MDHHS could reinstitute its masking order “on a moment’s notice,” “without the
legislature,” “on their own,” and “without any other approval.” Recording of Oral Arg. at 43:42–
44:03. Thus we owe no deference to MDHHS’s bare rescission of its order. See Speech First,
939 F.3d at 768. Its rescission was, instead, a quintessential “easily reversible” executive-branch
action, for which a “significantly” higher showing is required before diagnosing the case as moot.
Id.
A Continued Defense. Last, both Speech First and the Supreme Court’s own precedents
instruct that a challenge to a rescinded policy is unlikely moot when the defendant mounts a
vigorous defense of the policy’s lawfulness. See id. at 770 (“Significantly, the University
continues to defend its use of the challenged definitions.”); see also Parents Involved in Comm.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007) (“[T]he district vigorously defends the
constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved
in its favor it will not resume using race to assign students. Voluntary cessation does not moot a
case or controversy unless subsequent events make it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur, a heavy burden that [defendant] has clearly
not met.” (cleaned up)). The reason for such holdings is obvious: if the defendant admits the error
of his ways, it supports an inference that he has acquiesced in refusing to commit future violations.
Yet a vigorous defense creates exactly the opposite inference: the defendant’s desired freedom to
resume the challenged conduct shows that it is not “absolutely clear” the defendant will abstain
from those future violations.
As applied to this case, if ever there were a “vigorous defense” of a contested policy,
MDHHS and Ingham County have mounted it. Both have steadfastly refused to admit that their
policies of declining a religious exemption to Resurrection School violated the First Amendment.
To the contrary, they have insisted upon the constitutionality of their policies before the district
court, before the original panel, and now before the en banc court. Echoing the panel majority,
MDHHS contends that its orders were neutral and generally applicable, that Tandon and Fulton
cannot compel a different result, and that even if its orders were subject to strict scrutiny, they
would satisfy that standard. See MDHHS Supplemental Br. at 17 (“Tandon’s framework
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 31
underscores that there is no Free Exercise Clause violation here, and Fulton offers little guidance
on comparability.”).
Ingham County likewise believes the orders are neutral and generally applicable, even
despite Tandon and Fulton, and could survive strict scrutiny as well. See Ingham County
Supplemental Br. at 21. Ingham County’s brief also asserts—as did counsel for MDHHS at oral
argument, see Recording of Oral Arg. at 35:58–39:16—that Monclova is wrongly decided and null
because it purportedly conflicts with our earlier decision in Commonwealth v. Beshear. See
Ingham County Supplemental Br. at 16 (“The Panel’s decision correctly provides that if forced to
choose between conflicting precedent, [courts] are required to follow the first one, which in this
case is Beshear.”). Given these persistent defenses, neither entity has given us any reason to
believe that they have acquiesced and seen the error of their ways. In their ideal world, we would
hold that their orders were perfectly constitutional, and thus that they are free once again to
criminalize Resurrection School’s face-to-face instruction.
That all brings me to the majority’s speculation about how defendants’ “political
accountability” would surely prevent reimposition of a mask mandate. See Majority Op. at 5. That
is a curious argument. I had always thought that defendants’ imposition and rescission of the mask
mandate was based upon biological science rather than political science. I also would have thought
that insulation from political accountability was the very reason the Michigan legislature, through
an extensive delegation, established an independent public-health bureaucracy full of advisors
removable “for good cause”—so that it could institute measures unpopular but deemed necessary
to safeguard the public health without fear of democratic reprisal. See M.C.L. 333.2208(3); see
generally Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). Perhaps MDHHS is immune
from the ordinary principles of administrative law, but why that might be so the majority never
says.
The majority moreover offers no empirical support for its “political accountability” claim.
If anything, polling suggests that the Michigan public might actually favor reimposition of a mask
mandate. See, e.g., Ken Haddad, “Poll: Where Michigan voters stand on mask mandates, COVID
vaccines requirements,” Click on Detroit (Jan. 12, 2022), https://perma.cc/BU84-6UP8
(explaining that “63% of [Michigan] voters support a requirement for people to wear masks in
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 32
indoor places[.]”). In any event, how disquieting for Resurrection School that its religious free
exercise should hinge upon the caprice of the electorate. See Barnette, 319 U.S. at 638 (“The very
purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials[.]”).
2. Claim Two: The Supposed Irrelevance of the Ingham County Orders
to this Proceeding
As noted above, one of the foundational assumptions underlying the majority’s mootness
analysis is that MDHHS’s order was “repealed almost a year ago.” Majority Op. at 2. One would
have to be forgiven, based on that comment, for believing that Resurrection School thus has not
been subjected to a mask mandate since June 2021. But that would be false. Resurrection School
was actually subject to the mandate until February 2022, shortly before this case was argued. This
latter mandate was the creation of Ingham County, rather than a direct imposition from MDHHS
itself. But just like its predecessor from MDHHS, this new mandate illegalized Resurrection
School’s face-to-face instruction as it simultaneously exempted “restaurants, hair and nail salons,
performance venues, gyms, office buildings, indoor sports venues, [and] casinos.” Opinion &
Order at 16, R. 77. And, it turns out, Ingham County’s decision to impose such a measure was
deeply intertwined with MDHHS’s own views on the necessity of masking.
The majority’s contention to the contrary rests on its mere ipse dixit that the two mandates
have nothing to do with each other, and thus that Ingham County’s behavior is categorically
irrelevant to its mootness analysis. Majority Op. at 6.7 I disagree with the majority, of course, but
so does Ingham County. When it initially imposed its mask mandate in September 2021, it
explicitly cited MDHHS’s August 13, 2021, guidance “stating that all schools should require
universal indoor masking”—i.e., sans religious exemption—as a rationale for its own imposition
of indoor masking. See “Emergency Order (Ingham 2021-2) for Control of Epidemic,” Ingham
Cnty. Health Dep’t (Sept. 2, 2021), https://perma.cc/K25B-URTF. And what about when Ingham
County rescinded its order this February? As it explained to the district court, “because MDHHS
7Inversely, because the majority insists that MDHHS and Ingham County have nothing to do with each other,
today’s opinion has said nothing about whether that portion of Resurrection School’s suit against the latter is moot.
Resurrection School is thus free to continue pursuing relief against Ingham County.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 33
guidance regarding masks has changed, Ingham County has shifted its policies accordingly.”
Opinion & Order at 6, R. 77 (emphasis added); see also 2/17/2022 Transcript at 14:4-12, 21:16-
25, R. 80 (explaining that Ingham County both imposed and rescinded its “universal masking”
mandates in schools “[b]ased on” and “in compliance with guidance” from MDHHS).
As Resurrection School points out in its briefs before us, it is a basic principle of equity
jurisprudence that a defendant bound by an injunction cannot escape the decree by enlisting a third
party to do his bidding. Indeed, Federal Rule of Civil Procedure 65(d) provides that even a
nonparty with notice of a decree can be held in contempt for working in “active concert or
participation” with a party to violate the terms of the injunction. Fed. R. Civ. P. 65(d)(2)(C). As
the Supreme Court has explained, this principle prevents “nullif[ication of] a decree by carrying
out prohibited acts through aiders and abettors.” Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14
(1945); see also McGraw-Edison Co. v. Preformed Line Prods. Co., 362 F.2d 339, 344 (9th Cir.
1966) (“Nonparties may be found in contempt of an injunction provided that they have actual
notice of the injunction and aid or abet its violation.”).
The majority’s unexplained refusal to consider Ingham County’s conceded cooperation
with MDHHS to impose a mask mandate thus creates an illogical disparity. Rule 65 provides that
even a nonparty acting in concert or participation with a defendant-party may be jailed for
contempt of a decree. McGraw-Edison Co., 362 F.2d at 344. Yet in the majority’s view, when a
party to the suit (Ingham County) acts in concert with another party to the suit (MDHHS) to carry
out an illegal act, that fact is categorically insufficient to show that a suit against the latter is even
justiciable. See Majority Op. at 6.
Contrary to what the majority implies, its creation of that mismatch finds no support in the
cited pages or footnote from our decision in Chirco v. Gateway Oaks. But see id. (citing Chirco
v. Gateway Oaks, L.L.C., 384 F.3d 307, 309–10, 310 n.1 (6th Cir. 2004)). If anything, Chirco
actually supports justiciability in this case. Chirco involved a businessman, Chirco, who sued a
condominium developer, Gateway Oaks, for copyright infringement, claiming that condos
Gateway Oaks had constructed were substantially similar to condos that Chirco himself had
designed. Chirco, 384 F.3d at 308. He also filed a notice of lis pendens on the condos, the point
of which was to inform potential buyers that an action was pending against the property. Id.No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 34
The district court canceled the lis pendens, however, reasoning that the copyright suit “did not
affect the title to the Gateway Oaks condominiums.” Id. Chirco appealed the cancellation. Id.Yet as the suit proceeded, Gateway Oaks sold off all the condos to third parties. Id. at 309. Chirco
conceded, therefore, “that any decision by [the Sixth Circuit] would have [had] no impact on the
instant case against Gateway Oaks.” Id. But he asked us to adjudicate the validity of the
cancellation anyway, as a lis pendens dispute could potentially recur between Chirco and some
other party not before the court. Id. We refused to do so, however, applying the basic principle
that the capable-of-repetition doctrine requires that the dispute be capable of repetition between
the same parties. Id. at 309–10 (citing Norman v. Reed, 502 U.S. 279, 288 (1992)).
That the majority views Chirco (or the same-party requirement more generally) as
defeating the relevance of Ingham County’s behavior to the mootness analysis here betrays a basic
misunderstanding of Resurrection School’s argument. Resurrection School is not seeking an
abstract declaration that MDHHS’s mandate was illegal solely because it might later deploy that
holding against some unknown party in some future, collateral proceeding—as Chirco might have
done against some unknown third party not before the court. Instead, it wants a ruling that MDHHS
itself must stop instructing Ingham County to impose “universal indoor masking” sans religious
exemption upon the School. See “Emergency Order (Ingham 2021-2) for Control of Epidemic,”
supra. And given that Ingham County “shift[s] its policies accordingly” based on what MDHHS
tells it to do, Opinion & Order at 6, R. 77, Resurrection School plainly has a justiciable interest in
securing a decree against MDHHS itself. What it fears, in other words, is not merely a repetition
of Ingham County’s behavior, but of MDHHS’s as well, given MDHHS’s evident control over
Ingham County’s decisions.8
8That Ingham County may once again “shift[ ] its policies accordingly” based on new masking guidance from
MDHHS, Opinion & Order at 6, R. 77, is bolstered by MDHHS’s explicit acknowledgment on its own website that it
may institute new masking measures in response to “future phases” of the pandemic. See, e.g., “Updated Masking
Guidance for Michiganders,” Mich. Dep’t of Health & Hum. Servs. (Feb. 16, 2022), https://perma.cc/4ALG-U53H
(“Recommendations regarding masking may change as conditions evolve—such changes could include the presence
of a new variant that increases the risk to the public, or an increased number of cases that strains the healthcare
system.”).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 35
3. Claim Three: No Reasonable Officer Would Reinstitute an
MDHHS-Style Order after Tandon v. Newsom
The majority next asserts that no reasonable officer would reimpose an MDHHS-style
mandate given the now-“substantially developed caselaw” on general applicability; namely, the
Supreme Court’s decision in Tandon. Majority Op. at 7, id. at 5–6 (citing Tandon, 141 S. Ct. at
1294). Yet the majority’s bare assertion gives me no confidence that MDHHS and Ingham County
share that understanding of the relevant precedent. MDHHS itself kept its contested orders in place
for months after Tandon came down. Ingham County likewise promulgated its own orders
disparately burdening Resurrection School’s religious free exercise well after Tandon. For that
matter, the only reason we are even in an en banc proceeding right now is because the panel
majority held that MDHHS’s orders were lawful even under Tandon. See Resurrection Sch.,
11 F.4th at 457 (“Tandon v. Newsom does not compel a different comparator.” (citation omitted)).
And both MDHHS and Ingham County continue to insist that their orders pose no First
Amendment concern, even under Tandon. See supra pages 30–31; see also 2/17/22 Transcript at
22:9-20, R. 80 (contending that Ingham County’s orders are generally applicable even under
Tandon and Monclova and that, in any event, they could satisfy strict scrutiny). It is simply not
credible to claim that Tandon itself obviated the possibility that an MDHHS-style order could
return.
4. Claim Four: COVID has Abated Such That There is “No Reasonable
Possibility” Defendants Could Reimpose a Mask Mandate
The majority last asserts that conditions have so improved regarding COVID-19 that there
is “no reasonable possibility” defendants could reinstitute a mask mandate. Majority Op. at 7.
Much like the majority’s speculation about defendants’ “political accountability,” however, this
intuition about a rapidly evolving public-health situation—derived from a year-old record
assembled in a preliminary-injunction proceeding—has scant empirical support. Indeed, in the
weeks after our oral argument for this case, the following institutions have either reinstated or
extended their mask mandates in light of new surges of COVID-19:
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 36
• Columbia University
o See “As of April 11, Non-Cloth Masks are Mandatory in
Classrooms,” COVID-19 Resource Guide for the Columbia
Community (Apr. 10, 2020), https://perma.cc/P9TK-ACJT.
• Georgetown University
o See Lauren Lumpkin, “Georgetown, Johns Hopkins
temporarily restore some covid measures,” Wash. Post
(Apr. 7, 2022), https://perma.cc/Z39F-27V6.
• Johns Hopkins University
o See id.
• The City of Philadelphia
o See Elizabeth Wolfe, “Philadelphia will reinstate its indoor
mask mandate as cases rise,” CNN (Apr. 11, 2022),
https://perma.cc/76XM-QHKK?type=image.
• American University
o “Mask Guidelines: New Spring 2022 Protocols,” American
University (last visited Apr. 12, 2022),
https://perma.cc/WR33-RSL6?type=image (“As of April 12,
2022, masks will be required in all campus buildings, except
when individuals are alone in private offices, inside
residence hall rooms with only roommates, or when actively
eating or drinking.”).
• George Washington University
o See “GW to Reinstate Indoor Mask Requirement,” The
George Washington University (Apr. 11, 2022),
https://perma.cc/4SPU-HVEQ.
• The University of Connecticut
o See “UConn Reinstituting mask requirement as COVID
positivity rates rise,” News 8 wtnh.com (Apr. 15, 2022),
https://perma.cc/75S6-W5V9?type=image.
• Rice University
o See Giulia Heyward, “Virus outbreaks are pushing some
U.S. universities to reinstate mask mandates,” N. Y. Times
(Apr. 16, 2022), https://perma.cc/KF9N-9JRS.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 37
• Elementary schools in (1) Ottawa, (2) Chicago, (3) North Carolina,
(4) New Jersey, (5) Milwaukee, (6) California, (7) Massachusetts, and
(8) Pennsylvania
o See Caroline Alphonso, “Ottawa public school board
reinstates mask mandate as other boards make new plea for
masking,” The Globe & Mail (Apr. 13, 2022),
https://perma.cc/Y2QB-6EGT.
o See Kelly Davis, “Some classes at North Side school return
to mask mandate after increase in Covid cases,” WGN9
(Mar. 21, 2022), https://perma.cc/2R37-NSJE.
o See Samantha Kummerer, “Masks are back at Carrboro High
School after uptick in COVID cases connected to prom,”
ABC11 (Apr. 14, 2022), https://perma.cc/QGL3-MU6K.
o See Lauren McCarthy, “Two high schools in New Jersey
reinstate mask mandates following outbreaks,” N. Y. Times
(Apr. 1, 2022), https://perma.cc/2T5A-L8NC.
o See Elizabeth Wolfe & Andy Rose, “Milwaukee schools
reinstate mask mandate just one day after it was dropped,”
CNN (Apr. 20, 2022), https://perma.cc/4JEP-7WDD.
o See “Pacific Charter High School reinstates mask mandate
amid spike in COVID cases after spring break,” ABC7 (Apr.
20, 2022), https://perma.cc/V3HP-NPB5?type=image.
o See Adria Watson, “Northampton reinstates school mask
mandate following increase in COVID-19 cases,” Boston
Globe (May 11, 2022), https://perma.cc/Q75C-H2M6.
o See “Masks go back on at Woodland Hills High School,”
Pittsburgh Post-Gazette (May 5, 2022),
https://perma.cc/NTF2-DABF.
o See “Pittsburgh Public Schools to require masks again,
starting Friday,” 11 News (May 12, 2022),
https://perma.cc/84NX-ABCB.
o See “Masks Now Required at Evanston Township High
School as COVID Cases Rise,” NBC5 Chicago (May 16,
2022), https://perma.cc/SMC2-E2NP.
• The University of Rochester
o See “Face mask mandate reinstated on University of
Rochester campuses,” WXXI News (Apr. 15, 2022),
https://perma.cc/R9N9-E5MS.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 38
• The State University of New York–Orange
o See “SUNY Orange Returns to Indoor Masking (effective
April 18, 2022),” SUNY Orange (last visited Apr. 18, 2022),
https://perma.cc/VNJ9-E3JK.
• Syracuse University
o See Jeanne Lockman, “Syracuse University to require masks
during classes, some events as COVID cases rise,”
CNYCentral (Apr. 18, 2022), https://perma.cc/S6X7-3C8C.
• Bowdoin College
o See “Reinstating Masks (April 12, 2022),” Bowdoin College
Office of the President (Apr. 12, 2022),
https://perma.cc/3CN2-5ZW6?type=image.
• Rockefeller University
o See “Updates on COVID-19,” The Rockefeller University
(Apr. 15, 2022), https://perma.cc/YD3M-K4T2.
• Los Angeles County Public Transit
o See “Los Angeles County to Issue New COVID-19 Health
Order Requiring Masks on All Public Transit,” NBC Los
Angeles (Apr. 21, 2022), https://perma.cc/VN7Y-Q477.
• The Centers for Disease Control’s (“CDC”) Airline Mask Mandate
o See Heather Murphy, “Masks Stay On: C.D.C. Keeps the
Mandate on Planes,” N. Y. Times (Apr. 13, 2022),
https://perma.cc/D5K7-BP36.
o Of note, after a Florida district court enjoined
enforcement of this particular mandate, the CDC
authorized the Department of Justice to appeal the
decision after certifying that a transportation
masking mandate remains “necessary for the public
health.” See “CDC Statement on Masks in Public
Transportation Settings,” CDC Newsroom (Apr. 20,
2022), https://perma.cc/73LU-4P5K.
• San Francisco Public Transit
o See Lauren McCarthy, “The largest transit system in the Bay
Area reinstates a mask mandate for riders,” N. Y. Times (Apr.
28, 2022), https://perma.cc/2HW2-ZD9F.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 39
• Various Schools in Ingham County itself
o See Izzy Martin, “East Lansing Public Schools reinstates
mask mandate,” WLNS6.com (May 13, 2022),
https://perma.cc/7SAW-WBY7.
o See Sarah Lehr, “East Lansing schools reinstate mask
mandate beginning Monday,” WKAR.org (May 13, 2022),
https://perma.cc/5SDN-V5WT.
o Izzy Martin, “Waverly Community Schools masking up
starting Monday,” WLNS6.com (May 18, 2022),
https://perma.cc/Z4MR-5JST.
Given these developments—which include even reimposed mandates in Ingham County
itself—I would hesitate to categorically declare that there is “no reasonable possibility” defendants
could reinstate their prior orders.9 I recognize, of course, that the materials just cited are not in the
present record of this case, and so I do not fault the majority for failing to address those specific
sources. What I do fault the majority for, however, is its decision to declare moot not merely
Resurrection School’s preliminary-injunction request—the order actually before us—but its entire
case against MDHHS, thus forever precluding the School from introducing those materials
(or whatever else it sees fit) into the record at the district court in a trial on the merits. The
majority’s reasoning stands in substantial tension with circuit and Supreme Court precedent, see
infra at 40–43, and works an intolerable unfairness on Resurrection School.
What we should have done instead was vacate the district court’s denial of the preliminary
injunction, which was based on an erroneous understanding of the First Amendment. We then
should have remanded both that order and the case itself to the district court for a fresh analysis of
the preliminary-injunction factors—an analysis the district court has never properly conducted.
See Order at 7, R. 24. Because there is a “reasonable possibility” that MDHHS or Ingham County
(at the former’s behest) could reinstitute the challenged orders either during the pendency of the
9In addition to the masking reimpositions that we are already seeing across the United States, there is also
the reasonable possibility of reimpositions later on, such as this fall and winter. See, e.g., Yasmeen Abutaleb & Joel
Achenbach, “Coronavirus wave this fall could infect 100 million, administration warns,” Wash. Post (May 6, 2022),
https://perma.cc/H4SL-F8SB. For that reason as well, Resurrection School plainly has a justiciable interest in securing
long-term relief through a permanent injunction or declaratory judgment.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 40
litigation—which itself could take yet additional months—or after it, plaintiffs retain a live interest
in seeking both preliminary and permanent relief.
But let’s pretend that I’m wrong about all that. Pretend the present record on interlocutory
appeal really does give rise to justiciability concerns. Would it thereby follow that the appropriate
course was the majority’s here—to deem the entire case moot and make no meaningful attempt to
clarify the merits of the relevant free-exercise jurisprudence? Certainly not. As it turns out, there
was an alternative path available to us, a path not taken, through which we could have decided this
appeal that would have simultaneously respected the majority’s apparent justiciability qualms
while also doing much good to clarify the free-exercise law of our circuit. In the section that
follows, therefore, I will briefly describe that approach—and why its apparent repudiation further
underscores the indefensible nature of today’s result.
B. Unwinding the Majority’s Conflation of the Preliminary-Injunction Proceeding and the
Permanent-Injunction Proceeding
Today’s decision will have the practical effect of a final judgment, given that it brings an
end to Resurrection School’s suit against MDHHS. Strictly speaking, however, we are not
evaluating a final decision of the district court. This case comes to us instead on the denial of a
preliminary injunction, and so is an interlocutory appeal under 28 U.S.C. § 1292. See 28 U.S.C.
§ 1292(a)(1). Thus, what we are doing (or, rather, should have been doing) is predicting whether
Resurrection School would likely succeed on the merits of its claims at trial, where it then would
have sought a permanent injunction and declaratory judgment. See Benisek v. Lamone, 138 S. Ct.
1942, 1943–44 (2018); see also Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–96 (1981). The
distinction between review of a preliminary injunction and a permanent injunction is critical here,
in my view, for two reasons.
First, the litigation of a preliminary-injunction request in the district court involves a rapid,
abbreviated proceeding in which the district court itself attempts to predict whether the plaintiff is
likely to succeed at trial. See Camenisch, 451 U.S. at 395 (noting that a preliminary-injunction
proceeding involves procedures “less formal” and evidence “less complete” than a trial on the
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 41
merits).10 The decision is fast paced because its purpose is simply to protect plaintiffs’ rights
during the litigation, up to and until the district court can rule on the merits of the permanent
injunction and declaratory judgment. Id. (noting the relative “haste” of such preliminary
proceedings). For this reason as well, the district court’s determinations at the preliminary-
injunction stage have no preclusive effect upon its determinations at the merits stage regarding the
permanent injunction and declaratory judgment. Id.; see also Gjertsen v. Bd. of Election Comm’rs
of City of Chicago, 751 F.2d 199, 202 (7th Cir. 1984) (“A preliminary injunction has no preclusive
effect—no formal effect at all—on the judge’s decision whether to issue a permanent injunction.”).
So the irony here is that we are declaring plaintiffs’ merits challenge moot, and thus their entire
case against MDHHS extinguished, based on an abbreviated and outdated record assembled at a
preliminary and non-preclusive proceeding held over a year ago.
Second, and more important, is that the majority’s decision to declare the entire case
against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has
stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should
have done, instead, is rule solely on the interlocutory order before us. That would have put us in
the predictive posture characteristic of preliminary injunctions that I mentioned above. In the
course of deciding whether to affirm the denial of preliminary relief, therefore, we could have
ruled on whether Resurrection School was likely to illustrate justiciability at the merits proceeding
and, even if we thought that showing deficient, whether it was likely to succeed on the merits of
its First Amendment claim as well. That is because, as we recently explained, Article III courts
sitting in such a “predictive” posture may permissibly opine on both justiciability and the merits
(technically, likely justiciability and likely merits), even if they believe the former likely lacking.
See Arizona v. Biden, 31 F.4th 469, 479 (6th Cir. 2022) (“We address these [merits] questions
despite our initial doubts about standing and reviewability given the predictive nature of the
likelihood-of-success inquiry at this early stage.”).11
10For instance, the district court denied the preliminary-injunction request here without even holding a
hearing.
11Arizona involved a request for a stay of a preliminary injunction rather than a request for a preliminary
injunction itself, 31 F.4th at 472, but this difference is immaterial for present purposes, as the predictive posture of
each, and the factors used to evaluate each, are the same. See, e.g., Nken v. Holder, 556 U.S. 418, 434 (2009)
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 42
Thus, we could have explained that Resurrection School was likely to succeed on the merits
of its free-exercise claim, given that Tandon overruled Beshear. But then our court—presumably
a different subset of it, as I would not have agreed on this point—also could have explained that
Resurrection School was unlikely to establish justiciability. So we could have affirmed denial of
preliminary relief on that basis, and yet “withh[e]ld judgment” on whether the entire case was
moot, see Ramsek v. Beshear, 989 F.3d 494, 500 (6th Cir. 2021), given that the case’s justiciability
hinges on rapidly evolving factual circumstances that plaintiffs should have had a fair shot at
introducing into the record. We then could have remanded the case so the district court could have
taken updated information about COVID-19 and made a ruling on the justiciability of the
permanent injunction and declaratory judgment in a trial on the merits.12
Such an opinion, even though delivered in a preliminary posture, would have provided
valuable guidance to litigants in our circuit about the proper scope of the First Amendment—just
as the Supreme Court’s orders-docket opinions have done on the same topic. See, e.g., Tandon,
141 S. Ct. at 1294. And that approach would have been much fairer to plaintiffs as well, giving
them a procedural window to introduce new evidence about what continues to be a rapidly
evolving situation. See, e.g., Ramsek, 989 F.3d at 500 (dismissing an appeal as moot but
“withhold[ing] judgment on whether the case as a whole is moot” and remanding for the district
court to evaluate additional theories of injury); see also Reclaim Idaho v. Little, 826 F. App’x 592,
595 (9th Cir. 2020) (remanding a case in which the mootness issue arose in the first instance on
appeal “to allow the parties to develop the record and brief the district court on whether th[e]
controversy [was] ‘capable of repetition, yet evading review.’”).
Instead, today’s majority has done the very opposite. It makes not a prediction about
justiciability in the context of an interlocutory order, but instead an affirmative declaration that
there is no case or controversy at all between Resurrection School and MDHHS. See Majority
(noting the substantial overlap of the stay and preliminary-injunction tests because “similar concerns arise whenever
a court order may allow or disallow anticipated action before the legality of that action has been conclusively
determined.”); see also Bristol Regional Women’s Ctr., P.C. v. Slatery, 988 F.3d 329, 344 n.1 (6th Cir. 2021) (Thapar,
J., dissenting) (“[T]here is no material difference between a preliminary injunction case and a stay case: Courts apply
the same test in both.”), vacated on other grounds 994 F.3d 774 (6th Cir. 2021).
12And, because this case is not moot, the district court presumably would have ruled on the merits of
Resurrection School’s requests for declaratory and permanent-injunctive relief as well.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 43
Op. at 7. As a result, it has necessarily said nothing about the merits of the First Amendment
challenge underlying today’s dispute. Steel Co., 523 U.S. at 101–02. So Resurrection School is
now stripped of its right to make its case for permanent relief in the district court, while similar
litigants throughout our circuit will be left uncertain about what standard governs the Free Exercise
Clause. Prudence, in my view, would have dictated a different course.
* * *
I hope that I am eventually proven wrong. I would be quite pleased if COVID-19 were to
permanently enter humanity’s rear-view mirror. But the point is that I—just like the majority—
have no basis upon which to proclaim that my hopes today will surely become realities tomorrow.
Because I would hold that the present controversy is not moot, I respectfully dissent.