Resurrection Sch. v. Hertel

11 F.4th 437

RESURRECTION SCHOOL; Christopher Mianecki, individually and as next friend on behalf of his minor children C.M., Z.M., and N.M.; Stephanie Smith, individually and as next friend on behalf of her minor child F.S., Plaintiffs-Appellants,

v.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.

No. 20-2256

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2021

Decided and Filed: August 23, 2021

ARGUED: Erin Elizabeth Mersino, GREAT LAKES JUSTICE CENTER, Lansing, Michigan, for Appellants. Daniel J. Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee Elizabeth Hertel. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee Dana Nessel. ON 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, Joseph T. Froehlich, Ann M. Sherman, Rebecca A. Berels, 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. Alex J. Luchenitser, Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amici Curiae.

Before: SILER, MOORE, and DONALD, Circuit Judges.

MOORE, J., delivered the opinion of the court in which DONALD, J., joined, and SILER, J., joined in part. SILER, J. (pg. 462), delivered a separate opinion concurring in part and dissenting in part.

KAREN NELSON MOORE, Circuit Judge.

To control the spread of COVID-19, the Michigan Department of Health and Human Services ("MDHHS") required that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K–12 schools. Plaintiffs Resurrection School, a Catholic elementary school in Lansing, Michigan, and two parents with children enrolled at the school, on behalf of themselves and their minor children, challenge the mask requirement as a violation of their free exercise of religion, equal protection, and substantive due process rights. Since Plaintiffs filed suit, MDHHS has rescinded almost all COVID-19 pandemic emergency orders, including the challenged mask requirement. We hold that Plaintiffs’ challenge to the mask requirement is not moot, and we AFFIRM the district court's denial of Plaintiffs’ motion for a preliminary injunction on the merits.

I. BACKGROUND

A. COVID-19 in Michigan

COVID-19 is a novel respiratory infection first discovered in December 2019.

Since then, 925,377 Michigan residents have been diagnosed with COVID-19 and 20,076 Michigan residents have died from the disease. Mich. COVID-19 Dashboard, Cumulative Confirmed Cases and Deaths Among Confirmed Cases, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html (accessed Aug. 19, 2021). Although young children have been largely spared the worst of the disease's impact, six children ages 5–14 have died of COVID-19 in Michigan, Number of COVID-19, Pneumonia and Influenza Deaths by Age of Death, Michigan Occur[r]ences , MDHHS, https://www.mdch.state.mi.us/osr/Provisional/CvdTable2.asp (accessed Aug. 19, 2021), and 1,280 children ages 0-17 have been hospitalized with COVID-19, COVID Data Tracker, CDC, https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions (accessed Aug. 19, 2021). One-hundred-and-sixty-one children in Michigan who recovered from COVID-19 went on to develop Multisystem Inflammatory Syndrome in Children ("MIS-C"), a condition causing inflammation and damage to organs. MIS-C Data and Reporting, MDHHS, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173_104661---,00.html (accessed Aug. 19, 2021); see also R. 16-2 (Vail Aff. ¶ 7) (Page ID #538) (describing MIS-C and other long-term complications of COVID-19 infection). Children infected with COVID-19 can spread the disease to their parents and grandparents, teachers and school staff, and other medically vulnerable Michiganders.

COVID-19 primarily spreads through airborne particles that accumulate in enclosed spaces with inadequate ventilation, respiratory droplets produced when a person coughs, sneezes, or talks, and occasionally through contact with objects contaminated with the virus. How COVID-19 Spreads , CDC (July 14, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. Individuals infected with COVID-19 can spread the disease while asymptomatic and pre-symptomatic, and many individuals infected with COVID-19 experience mild symptoms. See R. 14-6 Ex. 5 (Nathan Furukawa et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic , 26 Emerg. Infect. Dis. (July 2020)) (Page ID #297–303). These features make COVID-19 difficult to control. As a result, universal community use of masks is a widely accepted method to prevent the spread of COVID-19, Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2 , CDC (May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html, despite Plaintiffs’ contentions to the contrary, R. 21 (First Amended Compl. ¶¶ 75–77) (Page ID #648–49).

Since Plaintiffs filed their lawsuit in October 2020, the Food and Drug Administration ("FDA") has authorized three COVID-19 vaccines for emergency use, including one for use in persons twelve years of age and older. Different COVID-19 Vaccines , CDC (May 27, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines.html. Two of the vaccine manufacturers, Pfizer-BioNTech and Moderna, are testing their vaccines in children ages six months to eleven years old. Apoorva Mandavilli, In the U.S., Vaccines for the Youngest Are Expected This Fall , N.Y. TIMES (June 8, 2021), https://www.nytimes.com/2021/06/08/health/us-vaccines-children-fall.html. Although initially Pfizer-BioNTech hoped to apply for emergency authorization of the vaccine for children ages five to eleven years old in September, and Moderna sometime in the fall, id. , the FDA has requested that the two vaccine manufacturers increase the size of their studies, which may delay the FDA's authorization of the vaccine for children younger than twelve, see Sheryl Gay Stolberg et al., At the F.D.A.’s Urging, Pfizer-BioNTech and Moderna Are Expanding Their Trials for Children 5 to 11 , N.Y. TIMES (July 26, 2021), https://www.nytimes.com/2021/07/26/us/politics/fda-covid-vaccine-trials-children.html.

B. Michigan's Mask Requirement

Masks have been a significant part of Michigan's COVID-19 response, especially prior to the widespread availability of safe and effective vaccines. Beginning on April 27, 2020, Michigan required all persons "able to medically tolerate a face covering" to wear a face covering "when in any enclosed public space." E.O. 2020-59 § 15(a) (Apr. 24, 2020); see also E.O. 2020-147 § 1 (July 10, 2020) (reiterating that all persons ages five and older must wear a face covering in public except in limited circumstances or if medically unable to wear a face covering).

In preparation for the 2020–2021 school year, Governor Gretchen Whitmer issued the MI Safe Schools Roadmap ("Roadmap"), which outlined safety recommendations and requirements for K–12 schools. MI Safe Schools: Michigan's 2020-21 Return to School Roadmap (June 30, 2020), https://www.michigan.gov/documents/whitmer/MI_Safe_Schools_Roadmap_FINAL_695392_7.pdf. The Roadmap varied its prescriptions based on the prevalence of COVID-19 in the community and the grade of the students. Id. at 9.¹ The Roadmap strongly recommended, but did not require, students in grades K–5 to wear a face covering in the classroom so long as they did not come into contact with students in another class. MI Safe Schools , at 22; see also E.O. 2020-142 § (2)(b)(1)(E) (June 30, 2020) (incorporating requirement into an executive order).

On September 25, 2020, citing "the higher incidence of [COVID-19] cases among children in recent months," "the clear effectiveness of masking as mitigation strategy," and the "absence of a widespread vaccine," Whitmer issued an executive order mandating that children in grades K-5 also wear a face covering in classrooms. E.O. 2020-185 § 1 (Sept. 25, 2020). A few days later, the Michigan Supreme Court concluded that the 1945 law under which Whitmer had been issuing executive orders regarding the COVID-19 pandemic was an improper delegation of legislative power in violation of the Michigan Constitution. See In re Certified Questions from United States Dist. Ct., W. Dist. of Michigan, S. Div. , 506 Mich. 332, 958 N.W.2d 1 (2020). MDHHS then issued an order reinstating the requirement that children in grades K–5 wear a face covering in the classroom. 10/05/20 MDHHS Order §§ 2–3. MDHHS issued another near-identical order on October 9, 2020. 10/09/20 MDHHS Order. The Ingham County Health Department, which includes Lansing, also issued its own emergency order requiring all persons who leave their home or place of residence to wear a face covering, including children in grades K-5. Ingham Cnty. E.O. 2020-21 (Oct. 4, 2020); see also R. 16-2 Ex B. (Vail Aff. ¶¶ 13–22) (Page ID #539–41) (describing the Ingham County order). On October 23, 2020, the Ingham County Health Department rescinded its order after it confirmed that the MDHHS Orders included all requirements of the county order. Id. ¶ 23 (Page ID #541).

Since then, MDHHS has issued several orders slightly changing the circumstances for when a mask is required. The March 2, 2021 Order, which is the...