Religious Exemptions for Student Face Mask Mandates

Many schools are considering a student face mask mandate. While some local health departments have issued mask mandates, there is currently no statewide order requiring students to wear face masks at school. Absent a local health department order, the choice is left to the school’s discretion. Where schools have required stu­dents to wear face masks, some parents have requested religious exemptions.

This article provides a brief overview of the legal standards for student religious exemption requests and considerations for processing such requests.

Legal Standards

The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . . prohibiting the free exercise” of re­ligion. The U.S. Supreme Court has consistently held that the right to free exercise does not relieve a person of the obligation to comply with valid and neutral laws of general applicability just because a person’s religion may prohibit compliance with that law. Courts have recognized that a law is not neutral and generally applicable if it is a “veiled cover for targeting a belief or faith-based practice” or is “riddled with exemptions.”

Recent Sixth Circuit Decision

The Sixth Circuit Court of Appeals, whose decisions are binding in Michigan, recently refused to issue an order that would prohibit several State officials from enforcing a statewide face mask require­ment. Resurrection School v Hertel, et al, Case No. 20-2256 (CA 6, Aug 23, 2021). A Catholic school and two parents filed a lawsuit in a Michigan federal district court in 2020, claiming in part that the face mask requirement in Michigan Department of Health and Human Services (MDHHS) orders issued between October 2020 and March 2021 violated the free exercise of religion.

The MDHHS orders required each person to wear a face mask at gatherings, unless an exemption applied. Some exemptions in the or­ders included people who could not medically tolerate a face mask, people swimming, and people eating or drinking at certain locations.

The school argued that the MDHHS face mask requirement interfered with its sincerely held religious beliefs because it pre­vented the school’s students from “partaking fully in a Catholic edu­cation.” One parent argued that the requirement interfered with his children’s ability to engage in Catholic religious teachings because wearing a mask negatively affected focus. The other parent argued that her child could not wear a face mask due to respiratory issues, which the child’s pediatrician determined were not severe enough for a medical exemption. She chose to home-school her child due to the face mask requirement, resulting in the child’s long-term absence from the Catholic school.

Shortly after filing their lawsuit, the plaintiffs requested the district court to issue an order temporar­ily prohibiting State officials, including the MDHHS Director, from enforcing the then-in-effect MDHHS face mask order until the court decided the merits of the plaintiffs’ lawsuit, including their free exercise claim. The district court rejected the request, noting that the mask requirement was “near-universal” and nothing in the contours of the requirement correlates to religion. The plaintiffs appealed to the Sixth Circuit.

Although MDHHS rescinded its face mask orders before the Sixth Circuit reviewed the plaintiffs’ request, the court addressed the request in part because it was not “absolutely clear” that MDHHS would abstain from issuing another face mask order. Therefore, similar challenges to a future order could be filed. Concluding that plaintiffs’ claims were unlikely to succeed (includ­ing the free exercise claim), the Sixth Circuit affirmed the district court.

The Sixth Circuit stated that it does not question the sincerity of plaintiffs’ belief that wearing a face mask violates their Catholic faith. But, it concluded that the MDHHS face mask requirement was neutral and of general applicability because it applied to all students. The court added that the requirement was not “riddled with exemptions” because exemptions in the MDHHS or­ders were narrow and discrete. The court noted, for ex­ample, that many of the exemptions were inherently incompatible with wearing a mask, including medical intolerance, swimming, and eating and drinking. The court added that the exemptions were available regard­less of religious belief. For instance, all students could remove a mask for eating and drinking. Finally, the court stated that the face mask requirement was ration­ally related to a legitimate governmental interest – controlling the spread of COVID-19.

Importantly, the Sixth Circuit merely decided that plaintiffs were unlikely to succeed on their free exercise claim, but it did not dismiss the claim at this time. None­theless, the bottom line is that so long as a school’s mask-wearing requirement relates to public health, ap­plies to all students, and does not target religious prac­tices, that requirement is likely lawful even without religious exemptions.

Offering Religious Exemptions

While a school is not legally required to offer student religious exemptions to a mask-wearing re­quirement, it may grant exemptions, absent a legal or­der requiring masks regardless of religious objections (such as a local health department order). While a school may grant religious exemptions to its own mask requirements, it opens the door for a legal challenge if it also denies a religious-exemption request.

Critically, challenges to a person’s alleged religious beliefs have typically failed. Courts have explained that once a person alleges that “certain conduct violates their most sincerely held religious beliefs as they un­derstand them, it is not within the court’s purview to question the reasonableness of those allegations” or to say that the person’s “religious beliefs are mistaken or insubstantial.” Accordingly, authorizing religious ex­emptions creates a situation where it is difficult to deny religious exemption requests.

Note that schools may require a parent to take certain steps – including acknowledging the risks re­lated to COVID-19 for not wearing a mask – before granting a religious exemption for masks. In 2017, the Sixth Circuit upheld Michigan’s re­quirements for re­ceiving a religious waiver for manda­tory immuniza­tions, including the requirement that parents visit the local health department, explain the basis for the objection, and attend educational sessions before receiving a waiver. Because the educational ses­sion was intended to inform parents about the benefits of vaccinating children and the potential dangers in de­clining to do so, the court held that the session did “nothing to promote or inhibit a particular religion or religion in general.”

Wrap-Up

We will keep you updated with any further developments. Until then, absent a federal, state, or lo­cal order, school officials have discretion whether to re­quire students to wear face masks at school. If a school adopts a neutral and generally applicable face-mask policy for students with only limited exceptions, a re­viewing court will likely not require the school to grant an exemption on religious grounds. Note that schools must continue to require masks on school buses under the January 29, 2021 Centers for Disease Control and Prevention (CDC) Order, which does not contain a reli­gious exemption and which is discussed in the next School Law Notes article.

We have previously provided guidance on medical exemptions, which has a standard different from the standard for religious exemptions. We continue to rec­ommend that you consult with your local public health department to determine the most appropriate mitigation measures to take in your geographic area.

Note that this article is limited to student face mask requirements. Employee mask requirements trigger a more complicated analysis, requiring consideration of Title VII, the Michigan Elliott Larsen Civil Rights Act, and the Public Employment Relations Act, amongst other laws. Please direct questions about employee mask mandates to your Thrun labor attorney.