RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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RESURRECTION SCHOOL; CHRISTOPHER MIANECKI,
│
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. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cv-01016—Paul Lewis Maloney, District Judge.
Argued: July 21, 2021
Decided and Filed: August 23, 2021
Before: SILER, MOORE, and DONALD, Circuit Judges.
_________________
COUNSEL
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.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 2
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.
MOORE, J., delivered the opinion of the court in which DONALD, J., joined, and
SILER, J., joined in part. SILER, J. (pg. 31), delivered a separate opinion concurring in part and
dissenting in part.
_________________
OPINION
_________________
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-
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 3
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/Provisio
nal/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).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 4
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
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 5
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., 958 N.W.2d 1 (Mich.
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).
1
The Roadmap corresponds to the MI Safe Start Plan, which adopted a six-phase approach to reopening the
state based on the prevalence of disease. In Phase 1, a region is experiencing “[i]ncreasing number of new cases
every day, likely to overwhelm the health system” and only critical infrastructure is permitted to remain open,
whereas in Phase 6, the region has community immunity sufficient to minimize community spread and restrictions
are lifted. MI Safe Start: A Plan to Re-engage Michigan’s Economy, at 2 (May 7, 2020),
https://www.michigan.gov/documents/whitmer/MI_SAFE_START_PLAN_689875_7.pdf. When a region is in at
least Phase 4, the Roadmap permitted schools to reopen for in-person learning with certain safety protocols. MI Safe
Schools, at 21. In practice, Michigan treated in-person K–12 instruction more permissively than the terms of the MI
Safe Start Plan and the Roadmap. The MI Safe Start plan permitted schools to reopen for in-person instruction only
in Phases 5 and 6, MI Safe Start, at 2, and MDHHS permitted K–8 schools to remain open for in-person instruction
even when all regions were at the highest risk level, 11/15/20 MDHHS Order.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 6
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 focus of the parties’ briefing,2
provides in relevant part:
7. Face mask requirement at gatherings.
(a) All persons participating in gatherings are required to wear a face mask.
(b) As a condition of gathering for the purpose of transportation,
transportation providers must require all staff and patrons to use face
masks, and must enforce physical distancing among all patrons to the
extent feasible.
(c) Except as provided elsewhere in this order, a person responsible for a
business, store, office, government office, school, organized event, or
other operation, or an agent of such person, must prohibit gatherings of
any kind unless the person requires individuals in such gatherings
(including employees) to wear a face mask, and denies entry or service to
all persons refusing to wear face masks while gathered.
(d) A person responsible for a business, store, office, government office,
school, organized event, or other operation, or an agent of such person,
may not assume that someone who enters the facility without a face mask
falls within one of the exceptions specified in section 8 of this order,
including the exception for individuals who cannot medically tolerate a
face mask. An individual’s verbal representation that they are not
wearing a face mask because they fall within a specified exception,
however, may be accepted.
...
8. Exceptions to face mask requirements. 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;
2
Defendants acknowledge that MDHHS has made “minor alterations” to the exceptions between the
10/09/20 MDHHS Order and the 03/02/21 MDHHS Order, and thus, refer to “the orders” collectively. Hertel &
Nessel Br. at 8 n.6. For instance, during the winter surge in COVID-19 cases, MDHHS prohibited any non-essential
personal care services that required removal of face masks, most organized sports, and indoor dining. 11/15/20
MDHHS Order. Accordingly, we use “MDHHS Orders” to refer to the orders leading up to the rescission of the
mask requirement.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 7
(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 6 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;
(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 issued February 7, 2021, and are engaged
in practice or competition where the wearing of a mask would be unsafe.
03/02/21 MDHHS Order. In accordance with Mich. Comp. Laws § 333.2261, “violation of this
order is a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not
more than $200.00, or both.” Id. § 10(e). Further, MDHHS promulgated emergency rules
stating that a violation of the MDHHS Orders carries “a penalty of up to $1,000 for each
violation or day that a violation continues.” MDHHS Emergency Rules (Oct. 20, 2020).
On May 14, 2021, in response to CDC guidance that fully vaccinated persons no longer
need to wear a mask in most settings, MDHHS added fully vaccinated persons to the list of
exceptions to the mask requirement. 05/14/2021 MDHHS Order. One month later, MDHHS
rescinded almost all COVID-19 pandemic emergency orders, including the challenged mask
requirement, because of the reduction in COVID-19 test positivity rates, case rates,
hospitalizations, and deaths, the availability of COVID-19 vaccines, the availability of
therapeutics, such as monoclonal antibodies, and warmer weather. 06/17/21 MDHHS Order.
The 06/17/21 MDHHS Order became effective June 22, 2021. Id.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 8
MDHHS’s rescission coincided with summer break, which leaves open the question of
what restrictions MDHHS may impose for the 2021–2022 school year. MDHHS’s interim
guidance for schools recommends that schools use multiple prevention strategies, including face
masks, to limit transmission in school. MDHHS, Interim Recommendations for Operating
Schools Safely When There Is COVID-19 Community Transmission (June 25, 2021),
https://www.michigan.gov/documents/coronavirus/COVID-
19_Guidance_for_Operating_Schools_Safely_728838_7.pdf.
Other public-health authorities have weighed in on mitigation measures for in-person
education for the 2021–22 school year. In consideration of new evidence regarding the
B.1.617.2 (Delta) coronavirus variant, the CDC’s guidance for K–12 schools now recommends
that all persons wear a mask indoors at school regardless of vaccination status. Guidance for
COVID-19 Prevention in K-12 Schools, CDC (updated Aug. 5, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html.
The American Academy of Pediatrics (“AAP”) also recommends that all students and staff—
regardless of whether they are fully vaccinated against COVID-19—wear a mask indoors at
school as a “necessary measure[] to limit the community spread of SARS-CoV-2 to ensure
schools can remain open and safe for all students.” COVID-19 Guidance for Safe Schools, Am.
Acad. Pediatrics (last updated July 18, 2021), available at https://services.aap.org/en/pages/2019-
novel-coronavirus-covid-19-infections/clinical-guidance/covid-19-planning-considerations-
return-to-in-person-education-in-schools/. Masks, according to the AAP, are part of a “multi-
pronged, layered approach” that together “will make in-person learning safe and possible.” Id.
Some states and localities have adopted universal mask requirements in line with public
health authorities’ recommendations. See, e.g., Kalamazoo Cnty. Health Dep’t 08/18/2021
Order (requiring that children in grades K–6 and those providing services to children in grades
K–16 wear a mask in school settings); Ky. E.O. 2021-585 (Aug. 10, 2021); Cal. Dep’t Pub.
Health, COVID-19 Public Health Guidance for K-12 Schools in California, 2021-22
School Year (July 12, 2021), https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/K-12-Guidance-2021-22-School-Year.aspx (requiring that all persons, including children in
grades K–5, wear masks at school); K-12 School Updates, Del. Div. Pub. Health (May 12,
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 9
2021), https://coronavirus.delaware.gov/schools-and-students/school-updates/ (same). Other
states have recommended, but not required, students in grades K–12 to wear masks in school.
See, e.g., Ohio Dep’t Pub. Health (July 26, 2021),
https://coronavirus.ohio.gov/static/responsible/schools/K-12-Schools-Guidance.pdf.
Despite the CDC’s and the AAP’s guidance and the decisions of other states to impose
mask requirements in school, Whitmer has stated that she does not expect MDHHS to issue a
mask requirement or other pandemic orders “in the near future and maybe not ever.” Dave
Boucher & Kristen Jordan Shamus, Whitmer: No New State Mask Rule Expected Despite
Updated CDC Guidance, DET. FREE PRESS (July 27, 2021),
https://www.freep.com/story/news/health/2021/07/27/whitmer-no-new-state-mask-rule-despite-
updated-cdc-guidance/5385179001/. Hertel has indicated that she “expect[s] and encourage[s]
schools when they go back to have mask requirements for kids younger than 12 and those who
haven’t been vaccinated.” MDHHS Director: State Urging Schools to Have Mask Mandates for
Kids Under 12, Those Not Vaccinated, WXYZ-Det. (July 22, 2021),
https://www.wxyz.com/news/coronavirus/mdhhs-director-state-urging-schools-to-have-mask-
mandates-for-kids-under-12-those-not-vaccinated.
C. Plaintiffs’ Lawsuit
On October 22, 2020, Plaintiffs filed a complaint in the U.S. District Court for the
Western District of Michigan. Plaintiffs allege that the MDHHS Orders violate their rights to
free exercise, equal protection, substantive due process, freedom of speech, and freedom of
association. R. 1 (Compl. ¶¶ 135–41, 163–85) (Page ID #22–23, 27–30). In addition to these
constitutional claims, Plaintiffs argued that the 10/05/20 MDHHS Order is an unlawful exercise
of authority under Michigan law and violates the Michigan constitution’s separation of powers
and non-delegation clauses. Id. ¶¶ 142–62 (Page ID #24–26).
The declaration submitted by the principal of Plaintiff Resurrection School, Jacob
Allstott, attests that MDHHS’s mask requirement for students in grades K–5 violates
Resurrection School’s sincerely held religious beliefs because it interferes with the school’s
religiously oriented disciplinary policies and prevents younger students from partaking fully in a
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 10
Catholic education.3 R. 8-1 (Allstott Decl. ¶¶ 41–58) (Page ID #178–80). The declarations
submitted by the Plaintiff parents assert that their children find masks uncomfortable and
distracting from their religious education, and that the mask requirement conflicts with “the right
[as a parent] to choose a school for them which corresponds to their own convictions.” R. 8-2
(Mianecki Decl. ¶ 59) (Page ID #190) (quoting Catechism of the Catholic Church (“CCC”)
§ 2229); R. 8-3 (Smith Decl. ¶ 40) (Page ID #197–98).
Plaintiff Christopher Mianecki attests that wearing a mask in the classroom “interferes
with [his children’s] ability to engage in their elementary school classroom and its Catholic,
religious teachings.” R. 8-2 (Mianecki Decl. ¶ 52) (Page ID #189). He provides specific
examples of how the requirement that children wear masks in the classroom affects his three
children who are enrolled at Resurrection School. He states that wearing a mask negatively
impacts his children’s focus, id. ¶ 33 (Page ID #187), “diverts [their] attention away from the
lesson taught in class,” id. ¶ 36 (Page ID #187), and “negatively affect[s] [their] ability to breathe
effectively,” id. ¶ 38 (Page ID #187).
Plaintiff Stephanie Smith states that her child, F.S., is unable to wear a mask because he
“suffer[s] from breathing issues,” R. 8-3 (Smith Decl. ¶ 8) (Page ID #194), and “is highly
susceptible to respiratory infections that quickly turn into additional infections such as
bronchitis,” Id. ¶ 9 (Page ID #194). Despite Smith’s observation that F.S. is unable to wear a
mask because of his health conditions, F.S.’s pediatrician determined that F.S. did not qualify for
a medical exemption.4 Id. ¶ 11 (Page ID #194). As a result, Smith is “educating F.S. at home
where he is not mandated to wear a mask, and F.S. is on a long-term absence from his Catholic
3
In the initial complaint, Plaintiffs also argued that “[i]n accordance with the teachings of the Catholic
faith, Resurrection School believes that every human has dignity and is made in God’s image and likeness.
Unfortunately, a mask shields our humanity. And because God created us in His image, we are masking that
image.” R. 1 (Compl. ¶ 22) (Page ID #5).
4
The MDHHS Orders exempted children who “[c]annot medically tolerate a face mask” from complying
with the face mask requirements. 03/02/21 MDHHS Order § 8(b). The MDHHS Orders clarify that “[a]n
individual’s verbal representation that they are not wearing a face mask because they fall within a specified
exception . . . may be accepted.” Id. § 7(d). Organizations may choose to require documentation that an individual
cannot medically tolerate a face mask. See, e.g., Diocese of Lansing, Return to Learn: Phase 4 Plan,
https://www.dioceseoflansing.org/education/phase-4-plan (requiring that students and staff obtain a “written and
signed verification by a physician” in order not to wear a mask while at school).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 11
school.” Id. ¶ 16 (Page ID #195). Smith and her husband “cannot give F.S. the same Catholic
education that he receives at Catholic school with his classmates.” Id. ¶ 20 (Page ID #195).5
Plaintiffs moved for a temporary restraining order (“TRO”) and a preliminary injunction
seeking to enjoin Defendants from enforcing the 10/05/20 MDHHS Order against Resurrection
School and the other plaintiffs. R. 7 (Pls.’ Mot. for TRO & Prelim. Inj.) (Page ID #65–70). The
district court denied Plaintiffs’ expedited ex parte motion for a TRO, concluding that Plaintiffs
could not establish that they would experience irreparable harm without the order because they
had unreasonably delayed in filing for emergency ex parte injunctive relief.6 R. 11 (Order
Denying Mot. for TRO at 3–4) (Page ID #207–08). Defendants then filed motions to dismiss, R.
13 (Gordon & Nessel Joint Mot. to Dismiss) (Page ID #215–18); R. 15 (Vail & Siemon, Mot. to
Dismiss) (Page ID #475–76), and responses in opposition to Plaintiffs’ request for a preliminary
injunction, R. 18 (Gordon & Nessel, Resp. in Opp. to Pls.’ Mot. for TRO & Prelim. Inj.) (Page
ID #565–60); R. 19 (Vail & Siemon, Resp. in Opp. to Pls.’ Mot. for TRO & Prelim. Inj.) (Page
ID #602–04).
After Defendants responded to Plaintiffs’ initial complaint and motion for a TRO and
preliminary injunction, Plaintiffs filed an amended complaint. R. 21 (First Am. Compl.) (Page
ID #636–68). The First Amended Complaint narrowed Plaintiffs’ claims to violations of free
exercise, equal protection, and substantive due process, and the Michigan constitutional and
state-law claims. Id. The district court determined that the amended complaint did not render
Defendants’ motions to dismiss moot and required Plaintiffs to respond to the motions to
dismiss. R. 23 (12/10/20 Order) (Page ID #692).
5
We are troubled by public statements suggesting that Resurrection School did not require students in
grades K–5 to wear masks during the entire school year, Cody Butler, Federal Appeals Court to Hear Arguments
over Michigan Mask Mandate, WILX-Lansing (July 20, 2021), https://www.wilx.com/2021/07/20/federal-appeals-
court-hear-arguments-over-michigan-mask-mandate/, when they have made contrary representations to this court
and the district court.
6
The district court noted that Whitmer and MDHHS issued executive orders requiring individuals over the
age of five to wear a face covering indoors on July 17, 2020 and July 29, 2020 respectively, and thus, the “Plaintiffs
cannot rely on the October 2, 2020 Opinion from the Michigan Supreme Court as the critical event.” R. 11 (Order at
4) (Page ID #208).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 12
The district court denied Plaintiffs’ motion for a preliminary injunction. Resurrection
Sch. v. Gordon, 507 F. Supp. 3d 897 (W.D. Mich. 2020). Applying Commonwealth v. Beshear,
981 F.3d 505 (6th Cir. 2020) (order), the district court determined that Plaintiffs were unlikely to
succeed on the merits of their free-exercise challenge to the 10/05/2020 MDHHS Order. Id. at
900–01. First, the district court found that the 10/05/2020 MDHHS Order was neither motivated
by animus against people of faith or a specific faith nor limited to regulating only religious
activity. Id. at 901. The district court then determined that the order was neutral and generally
applicable because it “require[d] all individuals over the age of five to wear a face mask in
public. This requirement is in place whether they are attending a religious school, a secular
school, running errands, or participating in some other facet of daily life.” Id. at 901–02. The
exceptions to the order are “narrow and discrete,” and “apply to public schools and private
schools equally, and they apply to secular schools and religious schools equally.” Id. at 902.
Thus, the district court concluded that Plaintiffs were unlikely to succeed on the merits of their
free exercise claim. Id.
The district court dismissed Plaintiffs’ claim that the Order violated their equal-protection
rights by permitting individuals to remove their face covering in certain circumstances, because
“[t]here is nothing in the face-mask requirement that treats similarly situated groups of
individuals different.” Id. As for Plaintiffs’ state-law claims, the district court declined to
address this “novel question of state law for the first time” at this stage of litigation. Id.
Although the district court did not address Plaintiffs’ substantive-due-process claim by name, it
concluded at the end that “Plaintiffs have failed to establish a lik[e]lihood of success on the
merits on any of their claims.” Id. (emphasis added).
Plaintiffs timely appealed. R. 25 (Not. of Appeal) (Page ID #700–01). Defendants
move to dismiss the appeal as moot because MDHHS has rescinded the mask requirements.
No. 20-2256, R. 34 (Hertel & Nessel Mot. to Dismiss Appeal as Moot); No. 20-2256, R. 37
(Siemon & Vail Mot. to Dismiss Appeal as Moot). Plaintiffs oppose the motion. No. 20-2256,
R. 38 (Pls.’ Resp. Mot. to Dismiss Appeal as Moot).
The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction
pursuant to 28 U.S.C. § 1292(a)(1).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 13
II. ANALYSIS
A. Mootness
Defendants argue that we lack jurisdiction because Plaintiffs’ claims are moot. “[A] case
is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). “We do not have the
power to adjudicate disputes that are moot, and ‘[t]he mootness inquiry must be made at every
stage of a case.’” Hanrahan v. Mohr, 905 F.3d 947, 960 (6th Cir. 2018) (quoting McPherson v.
Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)). There are
two relevant exceptions to the mootness doctrine. First, voluntary cessation of the challenged
conduct does not moot a case unless it is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” United States v. Concentrated Phosphate Exp.
Ass’n, 393 U.S. 199, 203 (1968). Second, a case will not become moot if the injury is “capable
of repetition, yet evading review.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S.
449, 462 (2007). Plaintiffs argue that their case should proceed under both exceptions, and we
address both in turn.
1. Voluntary Cessation
“A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not
suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 174 (2000). Where the defendant voluntarily ceases the challenged conduct, the defendant
must establish that: “there is no reasonable expectation that the alleged violation will recur”; and
(2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged
violation.”7 Thomas v. City of Memphis, 996 F.3d 318, 324 (6th Cir. 2021) (quoting Speech
First v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019)). We caution that “[t]he burden of
demonstrating mootness ‘is a heavy one.’” County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)).
7
The second requirement is not at issue here.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 14
We generally treat “cessation of the allegedly illegal conduct by government officials . . .
with more solicitude . . . than similar action by private parties.” Mosley v. Hairston, 920 F.2d
409, 415 (6th Cir. 1990) (quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988)).
“This [voluntary cessation] exception properly applies only when a recalcitrant legislature
clearly intends to reenact the challenged regulation.” Ky. Right to Life, Inc. v. Terry, 108 F.3d
637, 645 (6th Cir. 1997); see also Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981
(6th Cir. 2012) (“[S]elf-correction [by government officials] provides a secure foundation for a
dismissal based on mootness so long as it appears genuine.” (quoting Mosley, 920 F.2d at 415)).
Plaintiffs argue, and Defendants acknowledge, that because Defendants’ “discretion to
effect the change lies with one agency or individual, . . . significantly more than the bare
solicitude itself is necessary to show that the voluntary cessation moots the claim,” Speech First,
939 F.3d at 768. Hertel & Nessel Reply at 4; Pls.’ Resp. at 7. Although MDHHS, like the
Defendants in Speech First, retains the sole authority to change the mask requirements, this case
is distinguishable from Speech First because MDHHS rescinded the challenged orders in
response to “changing circumstances.” Defendants Hertel & Nessel offer evidence that the
policy change was genuine, including that the policy change reflects increased access and
eligibility for vaccines, that Michigan joins other states in rescinding their mask requirements,8
and that MDHHS rescinded almost all COVID-19 orders, not merely the orders at issue here.
Although the Supreme Court has addressed mootness in the context of COVID-19
restrictions, the factual circumstances are distinguishable from those present here. In Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68–69 (2020), the Supreme Court held
that the plaintiffs’ challenge to a state COVID-19 pandemic order limiting attendance at religious
services was not moot even though the state had relaxed the attendance limitations in response to
8
Defendants note that as of July 2021 thirty-one states have rescinded their mask requirements. Hertel &
Nessel Reply at 5 n.4 (citing Andy Markowitz, State-by-State Guide to Face Mask Requirements, AARP (July 12,
2021), available at https://www.aarp.org/health/healthy-living/info2020/states-mask-mandates-coronavirus html.).
This argument cuts both ways because many states have imposed mask requirements for K–12 instruction, see Part
I.B, and some states and localities have recently reimposed broad indoor mask requirements following a new surge
in COVID-19 cases, see Nev. Exec. Directive. 047 (July 27, 2021) (requiring mask usage by all persons in areas
with substantial or high transmission of COVID-19); La. Procl. No. 2021-137 (Aug. 2, 2021) (implementing a
statewide mask mandate).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 15
declining COVID-19 cases. The Court reasoned that the plaintiffs “remain under a constant
threat” that the state will reimpose attendance limits without notice and “bar individuals in the
affected area from attending services before judicial relief can be obtained.” Id. at 68. The
state health department assigned areas to different risk categories based on the severity of the
COVID-19 outbreak, and imposed defined restrictions on activity. Id. at 66. The state continued
to use this framework, meaning that the plaintiffs remained at risk of restrictions on attendance at
religious services if the number of COVID-19 cases, deaths, and hospitalizations increased. Id.
at 68. Here, Defendants do not presently use a similar framework for imposing mask
requirements and other pandemic restrictions. To the contrary, Defendants at present have
rescinded all pandemic restrictions.
Similarly, in Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam), the Supreme Court
held that the plaintiffs’ challenge to the state COVID-19 pandemic order limiting gatherings,
including gatherings for at-home religious activities, was not moot even though the defendants
altered the guidance during litigation. The Court explained that
even if the government withdraws or modifies a COVID restriction in the course
of litigation, that does not necessarily moot the case. And so long as a case is not
moot, litigants otherwise entitled to emergency injunctive relief remain entitled to
such relief where the applicants “remain under a constant threat” that government
officials will use their power to reinstate the challenged restrictions.
Id. at 1297 (quoting Catholic Diocese of Brooklyn, 141 S. Ct. at 68). In concluding that
plaintiffs’ challenge was not moot, the Court noted that “the previous restrictions remain in place
until April 15th, and officials with a track record of ‘moving the goalposts’ retain authority to
reinstate those heightened restrictions at any time.” Id. (quoting S. Bay United Pentecostal
Church v. Newsom, 141 S. Ct. 716, 720 (2021) (statement of Gorsuch, J.)).
The Tandon Court’s conclusion rested on its perception that state officials had a “track
record” of altering COVID-19 guidance, and that it had previously “summarily rejected the
Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise” four times.
141 S. Ct. at 1297. In contrast here, Defendants have been consistent in their approach to mask
requirements. For the 2020–21 school year, excluding a few weeks at the beginning of the
school year, Defendants required students in grades K–5 to wear masks in the classroom.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 16
MDHHS altered its mask requirements only in May 2021 in response to the CDC’s guidance that
individuals who were vaccinated are unlikely to transmit COVID-19, and MDHHS eliminated
the mask requirements in June 2021 in response to sustained decreases in the number of COVID-
19 cases, hospitalizations, and deaths and the wide availability of safe and effective vaccines.
As for our own circuit, in an unpublished case reviewing a COVID-19 public-health
order, we declined to apply the voluntary-cessation exception to mootness where the Governor
replaced an executive order with a recommendation. Pleasant View Baptist Church v. Beshear,
838 F. App’x 936, 938 (6th Cir. 2020) (order); cf. Maryville Baptist Church, Inc. v. Beshear,
977 F.3d 561, 566 (6th Cir. 2020) (per curiam) (remanding to the district court to permit it to
consider “whether these cases have become moot in light of the Governor’s new orders”). In
distinguishing the case from Catholic Diocese of Brooklyn, we emphasized that “there, unlike
here, the challenged order remained in force subject to the apparent whims of the Governor, to
whom a presumption of regularity did not apply.” Pleasant View Baptist Church, 838 F. App’x
at 939.9
In some ways, Defendants’ argument that their rescission of the challenged MDHHS
orders moots Plaintiffs’ claims is stronger than the one accepted in Pleasant View Baptist
Church. In Pleasant View Baptist Church, we relied on the Governor’s public statements that he
would rely on recommendations instead of mandates, which he made prior to the widespread
availability of effective vaccines. MDHHS’s rescission of the challenged orders, by contrast,
reflects widespread availability of and increased eligibility for effective COVID-19 vaccines.
On the other hand, Pleasant View Baptist Church involved school closures, which are a more
onerous public health measure than requiring that students wear masks at school. In fact,
MDHHS and other public-health authorities recommend that all persons wear masks in school to
ensure that schools can maintain in-person learning. See, e.g., MDHHS, Interim
Recommendations for Operating Schools Safely When There Is COVID-19 Community
Transmission (June 25, 2021), https://www.michigan.gov/documents/coronavirus/COVID-
9
Plaintiffs suggest without explanation that “Tandon adopted a different analysis from Pleasant View
Baptist Church and a different standard.” Pls.’ Resp. at 12. Plaintiffs’ argument is unavailing. The Tandon Court
arrived at a different conclusion regarding mootness than we did in Pleasant View Baptist Church because the Court
was responding to the distinct facts of that case, not because it applied a different standard.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 17
19_Guidance_for_Operating_Schools_Safely_728838_7.pdf. (“Schools can layer multiple
prevention strategies developed by the Centers for Disease Control and Prevention (CDC) to
prevent transmission within school buildings, reduce disruptions to in-person learning, and help
protect the people who are not fully vaccinated, which currently includes all children under the
age of 12 years.”).
We conclude that Defendants cannot meet the heavy burden of establishing that it is
“absolutely clear” that they will not reimpose a mask requirement, especially for children
younger than twelve who cannot be vaccinated. We do not doubt the sincerity of MDHHS’s
statements that they have no intention to reimpose a mask requirement like the one challenged by
Defendants. We also recognize that the rescission of all pandemic orders, including the mask
requirement, is unique because it reflects the wide availability of safe and effective vaccines. At
the same time, the FDA has not yet authorized their use in persons younger than twelve, the
group comprising students in grades K–5. MDHHS has previously reimposed certain pandemic
emergency orders and tightened mask requirements in response to increasing COVID-19 cases,
hospitalizations, and deaths. Considering the very real possibility that MDHHS may be faced
again with escalating COVID-19 cases, hospitalizations, and deaths, we hold that Defendants
have not met their “heavy burden” of showing that it is “absolutely clear” that they will not
reimpose impose a mask requirement, including for children in grades K–5 receiving in-person
instruction. Defendants’ rescission of the challenged MDHHS Orders does not moot Plaintiffs’
claims.
2. Capable of Repetition, Yet Evading Review
Plaintiffs’ claims further come within the exception to the mootness doctrine for actions
that are “capable of repetition, yet evading review.” Pls.’ Resp. at 10–14. This exception is
limited “to situations where: ‘(1) the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action again.’” Chirco v. Gateway
Oaks, L.L.C., 384 F.3d 307, 309 (6th Cir. 2004) (quoting Weinstein v. Bradford, 423 U.S. 147,
148 (1975)). As the party asserting this exception, Plaintiffs bear the burden of proof. Lawrence
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 18
v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005). Plaintiffs satisfy both requirements for this
exception.
Plaintiffs have satisfied the first prong. Although Plaintiffs filed their complaint and
motion for a preliminary injunction in October 2020, the school year ended prior to when this
case could reach the court of appeals. It is true that Plaintiffs did not take advantage of
opportunities to expedite our review of the case.10 Nonetheless, the Supreme Court has found
periods of up to two years to be too short to be fully litigated. See, e.g., Kingdomware Techs.,
Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (holding that a procurement contract that
expires in two years does not permit judicial review); Deja Vu of Nashville, Inc. v. Metro. Gov’t
of Nashville & Davidson Cnty., 274 F.3d 377, 390–91 (6th Cir. 2001) (holding that two years to
challenge to a local ordinance prohibiting individuals with a sex-crime history to work for a
sexually oriented business was too short in duration). Specific to the educational context, we
have held, albeit in an unpublished decision, that an individualized education program lasting a
school year is too short in duration to litigate to conclusion. Woods v. Northport Pub. Sch.,
487 F. App’x 968, 980 (6th Cir. 2012).
Plaintiffs also satisfy the second requirement of the “capable of repetition, yet evading
review” exception. This is in part because the standard is a forgiving one. “Recurrence of the
issue need not be more probable than not; instead, the controversy must be capable of
repetition.” Barry v. Lyon, 834 F.3d 706, 715 (6th Cir. 2016). This standard provides that “the
chain of potential events does not have to be air-tight or even probable to support the court’s
finding of non-mootness.” Id. at 716.
10
Plaintiffs note that “[t]he District Court’s decision resulted in nine months of orders that stripped
Appellants from their sincerely held right to religious exercise, equal protection of the law, and substantive due
process.” Pls.’ Resp. at 13. But Plaintiffs are at least partly responsible for delays in this litigation. Plaintiffs
delayed in filing their complaint in federal court until October 22, 2020 and their emergency motion for a TRO or
preliminary injunction until October 27, 2020, even though Governor Whitmer issued her initial executive order
requiring that students in grades K–5 wear masks on September 25, 2020, E.O. 2020-185 § 1 (Sept. 25, 2020), and
MDHHS issued its first order on October 5, 2020, 10/05/20 MDHHS Order §§ 2–3. Plaintiffs also failed to take
advantage of opportunities to expedite the litigation. For instance, Plaintiffs could have filed a motion for an
injunction pending appeal, as other parties challenging COVID-19 pandemic orders have done, see, e.g., Monclova
Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477, 479 (6th Cir. 2020) (granting the plaintiffs’
motion for an injunction pending appeal fifteen days after the district court denied their request for a preliminary
injunction and twenty-four days after the plaintiffs filed their complaint), or requested expedited briefing or
expedited consideration of their appeal.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 19
Although Defendants provide ample reasons—namely the availability of and expanded
eligibility for COVID-19 vaccines—that a mandatory requirement that students in grades K–5
wear masks in the classroom is unlikely, that is not the standard. Rather, we look to whether the
controversy is capable of repetition. MDHHS acknowledged in its order rescinding the mask
requirements that “the COVID-19 pandemic continues to constitute an epidemic in Michigan.”
06/17/21 MDHHS Order. Both the CDC’s and MDHHS’s guidance recommend that students in
grades K–12 wear masks in the classroom. This is sufficient to establish that Plaintiffs’ claims
are capable of repetition, yet evading review.
True, in the election context, we have determined that lawsuits challenging election
procedures in light of the COVID-19 pandemic and attendant restrictions are not capable of
repetition, yet evading review. Most recently in Thompson v. DeWine, -- F.4th --, 2021 WL
3183692 (6th Cir. July 28, 2021), we held that the plaintiffs’ challenge to the signature
requirements for ballot initiatives was moot as to the 2021 election. In Thompson, the plaintiffs
argued that “COVID-19 remains a ‘full blown crisis’ hampering their efforts to gather signatures
for 2021 initiatives,” and thus their challenge fell under the capable of repetition, yet evading
review exception to the mootness doctrine. Id. at *4. We concluded, however, that
“advancements in the COVID-19 vaccine and treatment” made COVID-19 unlikely to threaten
seriously the plaintiffs’ ability to collect signatures for the 2021 ballot initiatives. Id.; see also
Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 560 (6th Cir. 2021) (“Fortunately,
because of advancements in COVID-19 vaccinations and treatment since this case began, the
COVID-19 pandemic is unlikely to pose a serious threat during the next election cycle.” (citing
Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
State/Territory, Ctrs. for Disease Control & Prevention, https://covid.cdc.gov/covid-data-
tracker/#trends_dailytrendscases (June 15, 2021)).11
These election cases, however, are distinguishable from the present case. First, our
decisions in those cases were contingent on the availability of COVID-19 safe and effective
11
Unfortunately, the daily number of COVID-19 cases, hospitalizations, and deaths has since trended
significantly upwards. Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
State/Territory, CDC, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (accessed on Aug. 2, 2021).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 20
vaccinations and treatment, which are presently authorized for use by persons old enough to vote
and sign petitions for ballot initiatives, but not for children in grades K–5. Second, in-person
instruction meaningfully differs from participation in the electoral process in a way that increases
the risk of contracting and transmitting COVID-19. Whereas participating in the electoral
process is a “discrete, individualized, often brief activit[y],” in-person classroom instruction
involves “indoor gatherings occurring for hours a day on a daily basis.” Hertel & Nessel Br. at
36. Finally, although COVID-19 may not pose a serious enough disruption to the electoral
process, it may still pose a significant enough problem to compel MDHHS to mandate that
persons, especially individuals not yet able to be vaccinated, wear masks. Accordingly, we
conclude that Plaintiffs’ claim is not moot and turn to the merits of their challenge.
B. Standard of Review
We review for abuse of discretion a district court’s denial of a preliminary injunction.
Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.
2004). “While the ultimate decision to grant or deny a preliminary injunction is reviewed for an
abuse of discretion, we review the district court’s legal conclusions de novo and its factual
findings for clear error.” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012). We have
cautioned that “[t]his standard of review is ‘highly deferential’ to the district court’s decision.”
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir.
2007) (quoting Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). To summarize, “[w]e
‘review the District Court’s legal rulings de novo’ (including its First Amendment conclusion),
‘and its ultimate conclusion [as to whether to grant the preliminary injunction] for abuse of
discretion.’” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Sup. Ct., 769 F.3d
447, 454 (6th Cir. 2014) (quoting McCreary County v. ACLU of Ky., 545 U.S. 844, 867 (2005)).
In determining whether to grant a preliminary injunction, we consider four factors:
“(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant
would suffer irreparable injury absent the injunction; (3) whether the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by the issuance of
an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012). Where, as in
this case, Plaintiffs “seek[] a preliminary injunction on the basis of a potential constitutional
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 21
violation, ‘the likelihood of success on the merits often will be the determinative factor.’”
Obama for Am., 697 F.3d at 436 (quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).
Accordingly, we focus our attention on whether Plaintiffs can establish a likelihood of success
on the merits.
C. Free-Exercise Challenge
Plaintiffs argue that MDHHS’s Orders violate their sincerely held religious beliefs
because they require students in grades K–5 at religious schools to wear a face covering. We do
not question the sincerity of Plaintiffs’ beliefs that wearing a mask in the classroom violates their
Catholic faith. Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not
within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the
validity of particular litigants’ interpretations of those creeds.”). Defendants largely do not
question the sincerity of the Plaintiffs’ religious objection to wearing a mask in the classroom.12
We begin with the familiar framework for free-exercise claims. Where a challenged law
is neutral and of general applicability and has merely an “incidental effect” on Plaintiffs’
religious beliefs, Defendants need not show a compelling governmental interest. Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see also Emp. Div., Dep’t
of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 878 (1990) (holding that if burdening the
exercise of religion is “merely the incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended.”). Where the challenged law does not
meet these requirements, Defendants must show that the policy is narrowly tailored to serve a
compelling state interest. Church of the Lukumi Babalu Aye, 508 U.S. at 531–32. This rule, in
part, reflected practical concerns with requiring governments to satisfy the stringent standard of
establishing a compelling interest for “all actions thought to be religiously commanded.” Smith,
12
Defendants Vail and Siemon contend in their brief that “Appellants do not cite to any sources to support
their position that the Catholic faith or Catholic theology is in any way opposed to the use of prophylactic masks
during a global pandemic,” Vail & Siemon Br. at 6, or “provide any examples of ways in which masks interfere with
or burden their religious beliefs,” id. at 19. Plaintiffs’ objections to masks admittedly are confusing and at times,
digress into secular, rather than religious concerns. Nevertheless, a plaintiff’s “religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas
v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 22
494 U.S. at 888. Requiring governments to show more than a rational basis for a law of neutral
and general applicability would:
open the prospect of constitutionally required religious exemptions from civic
obligations of almost every conceivable kind—ranging from compulsory military
service, to the payment of taxes; to health and safety regulation such as
manslaughter and child neglect laws, compulsory vaccination laws, drug laws,
and traffic laws; to social welfare legislation such as minimum wage laws, child
labor laws, animal cruelty laws, environmental protection laws, and laws
providing for equality of opportunity for the races.
Id. at 888–89 (citations omitted).
A law, of course, is not neutral and of general applicability if it discriminates on its face.
Hartmann v. Stone, 68 F.3d 973, 976, 978 (6th Cir. 1995). Relatedly, “[a] law might be
motivated by animus toward people of faith in general or one faith in particular.” Roberts v.
Neace, 958 F.3d 409, 413 (6th Cir. 2020) (per curiam). Even if a law appears neutral and is
devoid of animus, it is not neutral and of general applicability if it is “riddled with exemptions.”
Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012).
We considered the intersection between religious schools and COVID-19 orders in
Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020). In Beshear, the plaintiffs argued that a
Kentucky order that temporarily prohibited in-person instruction at public and private K–12
schools violated their free-exercise rights. We concluded, in a published opinion, that the
plaintiffs were unlikely to succeed on their claims that the order violated the Free Exercise
Clause of the First Amendment, and thus stayed the district court’s preliminary injunction. Id. at
511. First, we determined that the order was “neutral and of general applicability” because it
“applies to all public and private elementary and secondary schools in the Commonwealth,
religious or otherwise.” Id. at 509. Accordingly, the order “need not be justified by a
compelling governmental interest.” Id. Thus, deferring to “the Governor’s determination
regarding the health and safety of the Commonwealth at this point in time,” we concluded that
the plaintiffs were unlikely to succeed on the merits of their free-exercise challenge. Id. at 510.
The Supreme Court denied the plaintiffs’ petition for a writ of certiorari without reaching the
merits of the case because of the “timing and the impending expiration of the Order.” Danville
Christian Acad., Inc. v. Beshear, 141 S. Ct. 527, 528 (2020).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 23
In the present case, the district court applied Beshear and correctly concluded that
because the requirement to wear a facial covering applied to students in grades K–5 at both
religious and non-religious schools, it was neutral and of general applicability. We agree with
the district court’s application of Beshear.
Plaintiffs argue that a subsequent case, Monclova Christian Academy v. Toledo-Lucas
County Health Department, 984 F.3d 477 (6th Cir. 2020) (order), conflicts with the
district court’s order here. In Monclova Christian Academy, the panel concluded that a county
health-department order requiring all schools in the county to close for in-person learning was
subject to strict scrutiny. Although the order temporarily prohibiting in-person education applied
to public and religious K–12 schools alike, the panel construed the relevant comparator as
secular businesses such as “gyms, tanning salons, office buildings, and the Hollywood Casino”
that the health order had permitted to remain open, not non-religious K–12 schools. Id. at 482.
Accordingly, the panel held that health order was not neutral and of general applicability and
applied strict scrutiny to the challenged order. Applying this standard, the panel concluded that
the health-department order was not narrowly tailored to serve a compelling state interest and
granted plaintiffs’ motion for a preliminary injunction. Following the framework of Monclova
Christian Academy, Plaintiffs argue that the district court erred by failing to compare MDHHS’s
interest in requiring that students in grades K–5 wear masks in the classroom with MDHHS’s
interest in allowing persons not to wear masks in certain, secular circumstances. Pls.’ Br. at 30.
Beshear and Monclova Christian Academy, however, seemingly conflict with one
another. Indeed, the panel in Monclova Christian Academy recognized that Beshear could pose
an issue but contended that the decision in Beshear did not consider the “broader question” of
“whether an order closing public and parochial schools violates the Clause if it leaves other
comparable secular actors less restricted than the closed parochial schools.” Id. at 481. Thus,
according to the panel in Monclova Christian Academy, it was free to consider in the first
instance whether the relevant comparators were secular actors regulated by the specific order or a
broader set of secular businesses. Id. As Plaintiffs and amici here suggest, Monclova Christian
Academy’s interpretation of Beshear is incorrect. Amici Br. at 9. In Beshear, we did consider
whether the appropriate comparator was other non-religious schools or other non-school entities
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 24
and held that the former was the appropriate comparator. The plaintiffs and amici in Beshear
argued at the district court and in their appellate briefs that the law was not neutral and of general
applicability because it prohibited in-person education at K–12 religious schools while
permitting secular activities to continue. See, e.g., Pls.-Appellees’ Resp. Mot. for Stay Pending
Appeal, at 3–5, Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020); Brief for Pleasant
View Baptist Church et al. as Amici Curiae Supporting Respondents, at 5–10, Commonwealth v.
Beshear, 981 F.3d 505 (6th Cir. 2020); Brief for Multiple Private Kentucky Religious Schools as
Amici Curiae Supporting Respondents, at 9–12, Commonwealth v. Beshear, 981 F.3d 505 (6th
Cir. 2020). Accordingly, as this issue was “brought to the attention of the court” and “ruled
upon” in the earlier case, we must follow Beshear rather than Monclova Christian Academy.
United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (quoting Rinard v. Luoma, 440 F.3d
361, 363 (6th Cir. 2006)); see also United States v. Jarvis, 999 F.3d 442, 445–46 (6th Cir. 2021)
(“Forced to choose between conflicting precedents, we must follow the first one.”).
Tandon v. Newsom, 141 S. Ct. 1294 (2021), does not compel a different comparator. In
Tandon, the Supreme Court concluded that the plaintiffs were likely to succeed on the merits of
their free-exercise challenge to a California order limiting all gatherings in homes, religious and
non-religious, to three households. Id. at 1297. “[G]overnment 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.” Id.
at 1296. In concluding that the restriction was not neutral and of general applicability, the Court
noted that “California treats some comparable secular activities more favorably than at-home
religious exercise, permitting hair salons, retail stores, personal care services, movie theaters,
private suites at sporting events and concerts, and indoor restaurants to bring together more than
three households at a time.” Id. (emphasis added). Identifying a comparable secular activity for
religious schools other than a public or private nonreligious school is difficult. Schools
educating students in grades K–5 are unique in bringing together students not yet old enough to
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 25
be vaccinated against COVID-19 in an indoor setting and every day.13 Accordingly, the proper
comparable secular activity in this case remains public and private nonreligious schools.
Even under this broader conception of comparable secular activity, the MDHHS orders
are not so riddled with secular exceptions as to fail to be neutral and generally applicable. The
exceptions to the MDHHS Orders were narrow and discrete. First, many of the exceptions, such
as medical intolerance to mask use, eating and drinking, swimming, or receiving a medical
treatment during which a mask cannot be worn, are “inherently incompatible with” wearing a
mask. Hertel & Nessel Br. at 30. Contact sports where participants cannot safely remain
masked must adhere to a testing protocol. 03/02/2021 MDHHS Order § 6(a)(2). Here, Plaintiffs
seek to exempt children in grades K–5 at religious schools from having to wear a mask during an
activity in which wearing a mask is possible, albeit undesirable for Plaintiffs. Second, almost all
exceptions to the MDHHS Orders—aside from children younger than five years old and those
medically unable to wear a mask—are short in duration and lower risk (medical and personal
care services requiring removal of a mask; voting). Hertel & Nessel Br. at 30–31. Some of the
exceptions have a stringent social distancing requirement (public speaking with twelve feet of
distance) or are outdoors where the risk of COVID-19 transmission is reduced (outdoor,
physically distanced exercise). Id. at 33. Third, The MDHHS Orders also exempt activities that
are necessary to fulfill “equally important obligations to its citizens’ health and safety”
(firefighters, police officers, and emergency medical personnel “actively engaged in a public
safety role . . . where wearing a face mask would seriously interfere in the performance of their
public safety responsibilities,” 03/02/21 MDHHS Order § 8(i) (emphasis added)). Hertel &
Nessel Br. at 33–34. By contrast, as Defendants aptly describe it, “plaintiffs’ activity comprises
all-day, indoor mixing of the same groups of people, five days a week for months on end.” Id. at
33. Thus, unlike in Monclova Christian School, where the challenged order exempted an array
of secular activities that the panel viewed as posing a greater risk than in-person instruction, the
exceptions to the MDHHS Orders are narrow and largely limited to activities of lesser risk than
in-person instruction.
13
Perhaps the only other comparable secular activity, childcare organizations, were subject to the same
requirement that children ages five years and older wear a mask. 03/02/21 MDHHS Order § 7(e).
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 26
Finally, all exceptions to the MDHHS Orders were available to Plaintiffs if they had
chosen to engage in that activity. Hertel & Nessel Br. at 27. Plaintiffs were able to remove their
face coverings to eat lunch at school, swim during physical education class, participate in Mass
at school, engage in distanced public speaking on a religious topic, or exercise outdoors while
physically distanced during recess. Id. Under the MDHHS orders, persons medically unable to
wear a face covering, such as Smith’s son, could go without a face covering at school. Because
the MDHHS Orders are not so riddled with exceptions for comparable secular activities as to
render the mask requirement not neutral and of general applicability, we review the MDHHS
Orders for whether the state has a rational basis.
Other cases cited by Plaintiffs do not change this standard. At oral argument, Plaintiffs
argued that the Supreme Court’s recent decision in Fulton v. City of Philadelphia, 141 S. Ct.
1868 (2021), pronounced a different standard. In Fulton, the Supreme Court concluded that the
city’s refusal to contract with Catholic Social Services for the provision of foster care because
the agency’s religious beliefs prevented it from certifying same-sex couples violated the
organization’s free-exercise rights. Id. at 1882. The Fulton majority’s narrow holding focused
on a contract provision that permitted the commissioner of the city’s Department of Human
Services to grant exemptions to the non-discrimination clause in her “sole discretion.” Id. at
1878. The contract’s grant of unfettered discretion meant that the non-discrimination clause was
not neutral and of general applicability, and thus, was subject to strict scrutiny. Id. at 1881.
Although the plaintiffs and some of the concurring justices asked that the Court reconsider
Smith, the majority declined to do so because the city’s policy was not neutral and of general
applicability, and thus, fell outside the scope of Smith. Id. at 1876–77.
Plaintiffs cite the Supreme Court’s recent decision in Our Lady of Guadalupe School v.
Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020), for the principle that “[t]he First Amendment
protects the right of religious institutions ‘to decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine,’” (quoting Kedroff v. St.
Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)). Pls.’ Br.
at 26. Plaintiffs’ reliance on Our Lady of Guadalupe School is misplaced. In Our Lady of
Guadalupe School, the Supreme Court concluded that a form of immunity from employment-
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 27
discrimination claims brought by certain employees, the ministerial exception, extended to two
teachers who taught religion and participated in religious activities. Id. at 2066. The Supreme
Court, however, emphasized that religious institutions’ ability to decide “matters of church
government” and “faith and doctrine,” “does not mean that religious institutions enjoy a general
immunity from secular laws.” Id. at 2060. MDHHS Orders requiring all persons ages five and
older to wear a mask in public—including in the classroom—is not comparable to infringing on
the school’s authority to select their ministers and religious educators. Thus, Our Lady of
Guadalupe School provides no help to Plaintiffs.
Plaintiffs’ citation to Thomas v. Review Board of Indiana Employment Security Division,
450 U.S. 707 (1981), is also misplaced. According to Plaintiffs, Thomas compels us to “defer[]
[to] Plaintiffs’ understanding of their own religious beliefs” and not conclude that “any burden to
Plaintiffs’ religious beliefs was ‘incidental.’” Pls.’ Br. at 22 (quoting Resurrection Sch. v.
Gordon, 507 F. Supp. 3d 897, 902 (W.D. Mich. 2020)). Thomas, however, stands for the
proposition that we should defer to a plaintiff’s characterization of her opposition to a law as
religious. Thomas, 450 U.S. at 714.
Plaintiffs also argue that we should apply strict scrutiny to MDHHS’s Orders because the
orders violate both their free-exercise rights and their rights as parents to direct the education of
their children. Pls.’ Br. at 32.14 This hybrid-rights theory stems from dicta in Smith explaining
that a plaintiff may establish a violation of the Free Exercise Clause by showing that a neutral
and generally applicable law violates “the Free Exercise Clause in conjunction with other
constitutional protections.” 494 U.S. at 881.
Although some circuits have recognized hybrid-rights claims, we have consistently
declined to recognize hybrid-rights claims. For instance, in Kissinger v. Board of Trustees of
Ohio State University, College of Veterinary Medicine, 5 F.3d 177 (6th Cir. 1993), we
14
In support of this hybrid-rights argument, Plaintiffs cite language from the Supreme Court’s order in
Danville Christian Academy declining to grant Plaintiffs’ application for a writ of certiorari. Pls.’ Br. at 32 (“Even
if this Court were to deem Defendants’ orders generally applicable, which they are not, Plaintiffs’ free exercise
claim also requires heightened scrutiny because the ‘application of a neutral, generally applicable law to religiously
motivated action implicates the right of parents to direct the education of their children.’” (quoting Danville
Christian Acad., 141 S. Ct. at 528)). Plaintiffs’ reference is misleading, because the Supreme Court was merely
repeating an argument raised by amici, not assessing the merits of this argument.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 28
considered the merits of a veterinary student’s claim that her college’s policy of requiring
students to dissect animals violated the Free Exercise Clause and other constitutional provisions.
We declined to apply strict scrutiny to her hybrid claim, reasoning that “[w]e do not see how a
state regulation would violate the Free Exercise Clause if it implicates other constitutional rights
but would not violate the [F]ree Exercise Clause if it did not implicate other constitutional
rights.” Id. at 180. Simply put, this outcome would be “completely illogical.” Id. “[T]herefore,
at least until the Supreme Court holds that legal standards under the Free Exercise Clause vary
depending on whether other constitutional rights are implicated,” we explained that we would
“not use a stricter legal standard than that used in Smith to evaluate generally applicable,
exceptionless state regulations under the Free Exercise Clause.” Id. Since then, we have
consistently declined to recognize a hybrid-rights theory. See Pleasant View Baptist Church,
838 F. App’x at 940–41 (Donald, J., concurring) (collecting cases). We decline to recognize a
hybrid-rights claim here.
Applying rational-basis review, we hold that the MDHHS Orders are rationally related to
a legitimate government interest. To satisfy rational-basis review, Defendants must show “only
that the regulation bear[s] some rational relation to a legitimate state interest.” Craigmiles v.
Giles, 312 F.3d 220, 223 (6th Cir. 2002). Here, Defendants had a legitimate state interest in
controlling the spread of COVID-19 in Michigan. Plaintiffs apparently concede this point,
acknowledging that “COVID-19 poses real challenges and concerns to everyone and requires a
robust response.” Pls.’ Br. at 4. Further, Defendants cite more than ample evidence that
requiring masks in the school setting minimizes the spread of COVID-19. See Hertel & Nessel
Br. at 4–5; Vail & Siemon Br. at 8; R. 16-2 (Aff. of Vail) (Page ID #535–62). Although
Plaintiffs question the effectiveness of masks, even they admit that “masks serve a purpose when
students cannot socially distance and do not object to (and, indeed, enforce) mask wearing in the
hallways and common areas of the school.” Pls.’ Br. at 5–6.
We conclude that the MDHHS Orders do not violate the Free Exercise Clause because
the MDHHS Orders are neutral and of general applicability and satisfy rational-basis review.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 29
D. Equal-Protection Claim
Plaintiffs argue that the MDHHS Orders violate the Equal Protection Clause because the
Orders exempt certain secular activities but not religious education, and, alternatively, because
the Orders lack a rational basis. Plaintiffs also fault the district court for failing to cite caselaw
explaining why the MDHHS Orders satisfy the Equal Protection Clause.
To establish an equal-protection violation, “a plaintiff must adequately plead that the
government treated the plaintiff ‘disparately as compared to similarly situated persons and that
such disparate treatment either burdens a fundamental right, targets a suspect class, or has no
rational basis.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir.
2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Township of Shelby, 470 F.3d
286, 299 (6th Cir. 2006)). We have explained that “[t]he threshold element of an equal
protection claim is disparate treatment; once disparate treatment is shown, the equal protection
analysis to be applied is determined by the classification used by government decision-makers.”
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
Plaintiffs’ equal-protection challenge is confusing, is largely a repackaging of its free-
exercise argument, and is ultimately meritless. First, Plaintiffs fail to satisfy this threshold
requirement of showing that the state has treated similarly situated persons differently than
Plaintiffs. Plaintiffs argue that the MDHHS Orders result in “disparate treatment” because they
permit persons to remove their masks while engaging in certain secular activities and in religious
worship in a house of worship, while requiring students in grades K–5 at religious schools to
wear masks. This is a free-exercise challenge, not an equal-protection challenge. Seemingly
recognizing that this is a free-exercise challenge, Plaintiffs open their argument by stating that
“the challenged measures burden Plaintiffs’ fundamental rights to the free exercise of religion
under the First Amendment in violation of the equal protection guarantee of the Fourteenth
Amendment.” Pls.’ Br. at 34. Further, there is no “disparate treatment” because the MDHHS
Orders did not distinguish between certain groups of children. The MDHHS Orders required all
children ages five and older to wear masks in public, subject to a few universal exceptions that
were available to Plaintiffs.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 30
Plaintiffs’ argument that the requirement that children ages five years and older wear
masks in the classroom lacks any rational basis is equally unavailing. Although unclear from the
brief, Plaintiffs appear to argue that the MDHHS Orders lack any rational basis because the
Orders exempted activities that Plaintiffs perceive as riskier than the in-person education of
students in grades K–5. Pls.’ Br. at 34. One could also include Plaintiffs’ general belief that
masks do not work to limit the transmission of COVID-19 within this argument. Id. at 5. As
discussed in Part II.C, however, the MDHHS Orders satisfy rational-basis review. Accordingly,
we conclude that Plaintiffs’ equal-protection claim fails.
E. Substantive-Due-Process Claim
Finally, Plaintiffs argue that the MDHHS Orders violate their substantive-due-process
rights. “Where a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment, not the more
generalized notion of “substantive due process,” must be the guide for analyzing these claims.’”
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)); see also Kiser v. Kamdar, 831 F.3d 784, 791 (6th Cir. 2016) (declining to consider the
plaintiff’s substantive-due-process challenge because it was really a commercial-speech case).
Plaintiffs’ challenge to the MDHHS Orders lies in the First Amendment’s Free Exercise
Clause, and thus, their substantive-due-process claim is duplicative. The district court
admittedly did not explicitly address the merits of Plaintiffs substantive-due-process claim. We
nonetheless conclude that Plaintiffs’ substantive-due-process claim is without merit.
III. CONCLUSION
For the foregoing reasons, we hold that Plaintiffs’ challenge to the mask requirement for
children in grades K–5 in all schools in Michigan is not moot. We AFFIRM the district court’s
denial of Plaintiffs’ motion for a preliminary injunction.
No. 20-2256 Resurrection Sch. et al. v. Hertel et al. Page 31
______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
______________________________________________________
SILER, Circuit Judge, concurring in part and dissenting in part. I concur with the
majority’s conclusions on mootness, in part A of the opinion. However, I dissent on the merits
on the primary issue, that is, whether the district court correctly denied the petition for the
granting of a preliminary injunction.
I do not quarrel with the fact that the district court had the authority to deny the motion
for preliminary injunction under the facts of this case, but it did not have the benefit of the more
recent case Tandon v. Newsom, 141 S. Ct. 1294 (2021). It also did not have the benefit of the
decision in Monclova Christian Academy v. Toledo-Lucas County Health Department, 984 F.3d
477 (6th Cir. 2020), which was handed down later in the same month that the district court made
its ruling. Monclova held that in cases such as this, the court should look at all comparators, not
just the public schools. Id. at 480. The district court here compared the restrictions in this matter
with those followed in Commonwealth v. Beshear, 981 F.3d 505 (6th Cir. 2020). Yet Monclova
is more consistent with Tandon than Beshear. The court did not consider other comparable
secular activities beyond the public schools. I feel it is a mistake for this court to uphold the
denial of the preliminary injunction on the interpretation from Tandon without giving the district
court an opportunity to consider it in light of all the evidence before it. Therefore, I would
remand to the district court to review the case in light of the decision in Tandon.