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Does 1–11 v. Board of Regents of University of Colorado.

Nos. 21-1414 & 22-1027. 5/7/2024. D.Colo. Judge Eid. First Amendment—Fourteenth Amendment—Vaccine Mandate—Religious Belief Exemption—Preliminary Injunction.

May 7, 2024

In April 2021, the University of Colorado (the university) announced that it would require all employees and students (with some exceptions) to receive a COVID-19 vaccine by fall semester. The university permitted each campus to adopt its own policy and process for medical, religious, or other exemptions. The Anschutz Campus administration (the administration) purported to allow “students and employees to attest to their exemption based on religious beliefs” by using a form. The Jane Doe and John Doe plaintiffs in this case (the Does) were each employed by or enrolled at the university’s Anschutz Campus, and each submitted its form. In August 2021, the administration began enforcing a new policy, to take effect September 1, 2021 (September 1 policy), stating that religious exemptions could be submitted based on a person’s “religious belief whose teachings are opposed to all immunizations” and that the administration would only accept religious exemption requests that cited to an organized religion’s official doctrine as announced by the religion’s leaders. The administration also required applicants to explain in detail why their “sincerely held” religious beliefs or practices prevented them from getting the vaccination. The administration decided that Christian Scientists and Jehovah’s Witnesses would qualify for an exemption, but it would not grant exemptions to Roman Catholic, Buddhist, or Eastern Orthodox Church applicants, on the basis that their beliefs were “personal” rather than religious. The administration also rejected exemption applications from Evangelical Christians, non-denominational Protestants, and applicants who did not specify whether they were affiliated with a particular religious organization. The administration denied all of the Does religious exemptions under the September 1 policy, and it enforced the vaccine mandate against them.

After receiving threats of litigation over the September 1 policy, the administration announced a new COVID-19 vaccine policy, effective September 24, 2021 (September 24 policy), under which a religious accommodation could be granted based on an employee’s religious beliefs, but “will not be granted if the accommodation would unduly burden the health and safety of other Individuals, patients, or the campus community.” The September 24 policy provides no religious exemption or accommodation to students. Plaintiffs filed suit seeking a preliminary injunction of both the September 1 and September 24 policies, a permanent injunction, and damages. The administration did not grant any of the Does a religious exemption under the September 24 policy, and it placed non-exempt clinical employees on leave or fired them. The administration did not fire non-clinical employees, who were again denied religious exemptions under the September 24 policy; instead, as the administration had under the September 1 policy, it banned such employees from campus, and in at least one case, cut an employee’s pay. Ultimately, the district court denied the Does’ motion to enjoin the September 1 policy as moot and concluded that the Does had not met their burden to show they were entitled to a preliminary injunction of the September 24 policy.

On appeal, the Does contended that the September 1 and September 24 policies violate their rights under the First Amendment’s Religion Clauses and thus seek relief under both clauses. Appeal number 21-1414 appeals the denial of a motion for a preliminary injunction under the Does’ first complaint, which was superseded by the Does’ amended complaint, thereby mooting the motion. Accordingly, the Tenth Circuit determined that it cannot grant any effective relief in appeal number 21-1414. As to appeal number 22-1027, the Tenth Circuit determined that at least one employee plaintiff has standing to seek injunctive relief with respect to each policy, so neither appeal is moot with respect to the administration’s policies for employees. But no student has standing to seek a preliminary injunction, so this appeal is moot as it concerns the administration’s policies for students.

On the merits, the Tenth Circuit determined that the Does are highly likely to succeed on the merits, because the September 1 policy clearly violates the Establishment Clause and the Free Exercise Clause by discriminating on its face and in fact against certain religions due to stereotypes and religious animus. Further, the Does continue to suffer irreparable constitutional harm that outweighs any public interest against enjoining the September 1 policy. As to the September 24 policy, it is tailored to reach the same results as the September 1 policy, so the Does are likely again to prevail in showing that the September 24 policy is a product of discriminatory religious animus rather than neutral motivations. And the September 24 policy grants secular exemptions on more favorable terms than religious ones, so it is not generally applicable on its face. Because the policies were motivated by religious animus, they are subject to strict scrutiny, which neither survives. Accordingly, both policies substantially burden the Does’ exercise of religion. Therefore, the district court abused its discretion in failing to grant the Does’ motion for a preliminary injunction of the September 1 and September 24 policies.

The order was reversed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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